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Full text of "Compendium of the law of executors, administrators, guardians, and dower, in force in Alabama"

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COMPENDIUM" . 

OF THE LAW OF J%>^^t^ J AiT^ 

EXECUTORS, ADMINISTRATORS, GUARDIANS, 



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AND 



DOWER, 



IN 



FORCE IN ALABAMA 



BY JOHN A. CUTHBERT. 



MOBILE: 

THOMAS J. CARVER & CO. 

1850. 






PRESS or 

CASE> TIFFANY & CO., 
HARTFORD, CONN, 






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,5" , ORDEE OF SUBJECTS. 



PART I. 



Page. 

Persons capable of making a Will, . - . - i 

Wills of Personal Estate, 2 

Nuncupative Wills, - 4 

Wills of Real Estate, 4 

Revocation of Wills, --.... 5 

Wills lost or destroyed, 7 

Republication of Wills, 7 

Construction of Wills, ---... 7 

Mode of describing Legatee, - - . . _ g 

Mistake in the name or description of Legatee, - 11 

Legacies, General or Specific, 13 

Legacies of Money, Stock, Debts, &c. - . _ 14 

Bequest connected with the Realty, - - . - 14 

Bequest of General Personal Estate, - - . 15 

Description of property in Legacies, - - - - 15 

Legacies, Vested or Lapsed, ig 

Legacies lapsed by the death of the Legatee before the 

death of the Testator, 16 

Legacies lapsed by the death of the Legatee after the 

death of the Testator, 13 

"^ Lapseof Legacies payable out of Real Estate, - - 19 

^ Lapse of Legacies charged on Real and Personal Estate, 20 

Legacies on Condition, 20 

J^ Legacies on Condition in restraint of Marriage, - 22 

O^ Legacies to Executors, 23 

*^>^ Cumulative Legacies, 24 



' IV . . ■ . , 

Page. 

Legacy by a Debtor to his Creditor, - - _ . 25 

Legacy by a Creditor to his Debtor, - . . 26 

Appointment of Debtor, Executor, - - - - 27 

Appointment of Creditor, Executor, - - - - 27 

Ademption of Specific Legacies, - - - - - 27 

Ademption of Legacies by Portions to Children, - 28 

Abatement of Legacies, -..-.- 29 

Appointment of Executors, ----- 30 

Foreign Executor, -------32 

Executor de son tort, ------ 33 

Acts before Probate, ------- 34 

Probate, -------.-34 

Effect of Probate, 39 

Revocation of Probate, ------ 40 

Custody of Wills, 40 

Estate of the Executor, ------ 40 

Power of an Executor of an Executor, - - - - 40 

Power of a Feme Covert Executrix, - - - - 41 

Debts to be paid in preference to Legacies, - - - 41 . 

Assent to Legacies, ------- 42 

Time of Payment of Legacies, - - - - - 45 

To whom Legacies are to be paid, - - - . 46 

Interest on Legacies, ------- 46 

Increase or Diminution of Specific Legacies, - - 48 

Election to take the Legacy, - - - - - 48 

Refunding of Legacies, ------ 49 

Residuary Legatee, - - - - - - - 50 

PART II. , -.' ,. 

Administration, -------51 

Sheriff, Coroner, Administrator, 53 . 

Administrator General, 53 ^ , 

Administrator ad colligendum, - - - - - 53 ^^ ^ 

Special Limited Administration, - - . - 54 

Administrator durante minore estate, - - - - 54 ' 

Administration Ceterorum, ----- 54 * *^'' 

Kdvamisixdiioi pendente lite, ------ 55 <f?--* 



Page. 

Administrator de bonis non, 56 

Administrator cum testamento annexo', - - - 57 

When next of Kin and Intestate are Foreigners, - 58 

Creditor, Administrator, __-.-„ 59 

Feme Covert, Administratrix, ----- 59 

Time when Administration commences, - - 59 

Estate of the Administrator, ----- 59 

Estate of the Administrator in the Real Estate, - - 60 

Estate of the Administrator in the Personal Estate, - 60 
Rig;ht of the Administrator to Chattels Real, in relation 

to Husband and Wife, - - - - - 61 

Chattels Personal, - - - - - - - 61 

Heir-looms, -------- 62 

Paraphernalia, .-----.. 62 

Bonds, - - - ' = 63 

Oaths, = ' 64 

PART III. "^ 

f Revoca^o^ of Probate, --_-.= 65 

Effect of Revocation on the Prior Acts, - . _ 66 

Caveat, -..-__--. 66 

Prohibition, - 67 

Actions which survive to the Executor or Administrator, 67 
Apprentices, --------69 

Choses in Action, Right as regards Husband and Wife, ' 69 

Right to Contingent Interests, - - - - - 71 

Power of the Executor and Administrator generally, - 71 

Power of One of several Executors or Administrators, 73 

Right to retain in payment of a Debt, - - - - 73 

Inventory, ----.--=.74 

Appraisement, --..--. ^ 75 

Collecting the Effects, ------ 75 

Payment of Debts, ------- 75 

Sale of Personal Property, ----- 77 

Sale of Real Estate, =78 

Distribution, -------- 81 

Right of Husband in the Estate of his Deceased Wife, - 81 



VI 



Page. 

Rights of Wife in the Estate of her Deceased Husband, 82 
Descent, ---------83 

Children and their Representatives, - . . - 84 

Hotchpot, - - - - 85 

Advancement, - - - - - - - 85' 

Other next of Kin, 86 

Domicil abroad, 87 

Assets, 88 

Different Liabihties of the Personal and of the Real 

Estate for Debts, 88 

Exoneration of the Real by the Personal Estate, - 89 

Marshalling the Assets, 90 

Devastavit, - - - - - - - - 91 

Liability of Executors and Administrators on the Acts of 

the Deceased, - - -"- - - - 95 
Liability of Executors and Administrators on their own 

Acts, - - - - - - - - 97 ' .^ 

Funeral fixpenses and Last Illness, - •-•'*'- . 99' 

Taxes, _ ... 99 

Resignation, - - - - »-..- f4-,99**' 

Abatement of Suits, 100 

PART IV. 

Remedies at Law for Executors and Administrators, - 101 

Actions at Law between Administrators, - - 104 

Costs, 105 

Remedies at Law against Executors and Administrators, 105 

Scire Fieri Inquiry and debt suggesting a devastavit, - 111 

Actions on Bonds of Executors and Administrators, 111 

Bills of Exchange and Negotiable Notes, - - - 112 

General Statute of Limitations, - - - - 112 

Statute of Non-claim, - - - - - -113 

Remedies in Chancery for Executors and Administrators, 116 
Remedies against Executors and Administrators in the 

Probate Court, - - - - - - 116 

Juries, 119 

Return of Account and Inventory, - - - 120 



Vll 

Page. 

Distribution, _-- 121 

Settlement of Solvent Estates, _ . _ . 123 

Settlement of Insolvent Estates, . - - - 131 

Execution from the Com-t of Probate, - - - 138 

Bond for Title to Real Estate, 138 

Resignation, - • 1^9 

Probate Court, - - - - - -.-139 

Errors and Appeals, - - - - - - 1^^ 

New Trial, - 143 

» ■ PART V. 

Appointment of Guardians, _ _ - - - 144 

Revocation of Guardianship, _ _ - _ 145 

Bond of Guardian, 145 

Power of Guardian, __---- 146 

' Settlement bv Guardi^jm . - - - - - ^ 147 

PMIT VI. 

4 '•■Dov^rWwit^^(!ft?\ 149 

Dower, waived or barred by Legacy, - - - 150 

Relinquishment of Dower, 150 

Assignment of Dower, 1^1 



i 






V|;c 



I 



PART I. 



WILLS. 

PERSONS CAPABLE OF MAKING A WILL. 

All persons who are of the legal age, and who have suffi- 
cient discretion, and free will, are capable of disposing of their 
estates by will. 

]\^les fo urtee n yearsofage, and femal es twe lve ye ars of age , 
ma^TOspose of their personal estate, by will ; but no one under 
twenty-one years of age, can dispose of real estate by will. 
The will may be made, in each case, on the day on which the 
requisite age is completed. 

In order to make a will, the person must have sufficient intel- 
ligence, to be able to dispose of his property with reason and 
understanding. An idiot is incapable of making a will; and an 
insane person, during insanity. There is no precise or certain 
rule for determining, whether the person was an idiot, or insane : 
and the decision of this question rests on common sense. 

A will is void, if executed under well-founded fear of injury 
to the person or estate. There is no certain rule for ascertain- 
ing, whether the fear was sufficient to impair the free agency of 
the person making the will. The character, condition, and cir- 
cumstances, both of the person making the will, and of the per- 
son from whom the fear proceeds, are to be considered. 

A will is void, if executed under such excessive importunity, 
as may be understood to have taken away the free will of the 
testator ; an importunity which, it may be believed, he was 

2 



2 WILLS. 

unable to resist ; and to which he seems to have yielded for the 
sake of peace. 

There may be also a degree of influence over the mind of the 
testator, equivalent to fear or force, in destroying his free 
agency. A will made under such influence, is invalid. 

A married woman is, in general, incapable of making a will, 
without the assent of her husband ; and he may withdraw his 
assent, at any time before probate. To give validity to the 
will of the wife, it is not sufficient, that the husband give a gen- 
eral assent, that his wife may make a will ; it is necessary that 
his assent be given to the particular will in question. 

But a married woman may make a will, in pursuance of an 
agreement before marriage ; and she may dispose, by will, of 
her separate estate. 

If a feme sole make a will, it will be revoked by her subse- 
quent marriage ; but if she survive her husband, it may be re- 
vived by a subsequent publication. 

■ «■ - ■ 

WILLS OF PERSONAL ESTATE. 

A will extends to personal property subsequently acquired, 
as well as that held at the time of its execution, if such be the 
natural import of its language ; and it may be written ; or it 
may be oral, or nuncupative. 

For a will of personal estate, it is not requisite that there be a 
subscribing witness, or a witness to its publication. But if there 
be an attestation-clause not filled up, the will cannot be sus- 
tained, unless it appear by extrinsic evidence, either that the 
testator was prevented by the act of God, from having the in- 
strument finished ; or that he intended it to operate in its pres- 
ent form. If he had sealed it up, this intention would appear 
from that fact. 

For proof of any material fact, in establishing a will for per- 
sonal estate, two witnesses are necessary. 2 AL R. 218, John- 
son V. Glascock and Wife, et al. 

The signature of the testator is not necessary to the validity 
of a will of personalty. Proof that the will is in the hand-wri- 
ting of the testator, or according to his direction, and in writing. 



WILLS. 13 

is sufficient, if the instrument be complete in all other respects. 
7 Al. R. 519, Couch, et al. v. Couch. 

An instrument not in the hand-writing of the testator, and 
which has not been read over to him, may be valid as his will, if 
made in pursuance of instructions from him, when the testator 
has been overtaken by sudden death, or other act of God, pre- 
venting the regular execution of the will. But if the instruc- 
tions be not reduced to writing, during the life of the testator, 
they will constitute only a nuncupative will. 

An instrument not in the hand- writing, nor under the seal of 
the deceased, even though safely deposited among his papers, 
will not be sustained as his will, without proof that the deceased 
had recognized it as his will, or that it was written by his 
direction. 

When a document is unfinished, in the body of it, and on its 
face it appears to have been in progress only, the presumption 
of law is strong against it ; and to sustain it as a will, it must be 
proved, on a view of all the facts and circumstances, that the 
deceased had come to a final resolution, to make the disposition 
of his property, contained in it ; and that he had not abandoned 
that intention, but was prevented by the act of God, from pro- 
ceeding to the completion of his will 

No particular form is necessary, to constitute a will. Instru- 
ments in various forms, and purporting to be something else, are 
sustained as wills, when they make a disposition of property, de- 
pendent on the death of the party executing them. A deed, if 
it be testamentary in its import, and its consummation depends 
on the death of the maker, v/ill be sustained as a will. 2 Al. R. 
152, Dunn and Wife, et al. v. Br. Bk. at Mobile. 

The language of a will is not closely scrutinized. It is suffi- 
cient, that it show the intentiT)n of the maker. If the language 
used, is in the form of a wish or request, it is as operative, as if 
the direction were in the form of a command. 

A will written in pencil, is as valid as if it were in ink, if it 
sufficiently appear, that the testator intended the paper as a 
declaration of his mind. It is the general presumption of law, 
that alterations made in pencil, are deliberative ; and that those 
made in ink, are final and conclusive. 

A will which purports to convey both real and personal 



4* WILLS. 

estate, but which is not so executed as to be vahd for disposing 
of real estate, may be valid as to the personal estate. 10 Al. 
R, 977, HiUlard and Wife v. Berford's Heirs and Adrnrs. 

NUNCUPATIVE WILLS. 

A nuncupative, or oral will (spoken and not written) must 
have been made in the last sickness ; but these words, last sick- 
ness, do not import in extremis. Al. Dig. 597, sec. 2. 2 CL 
218, Johnson et al. v. Glascock and Wife, et al. 

A nuncupative will must have been made at the habitation of 
the deceased, or where he had resided ten days or more, next 
preceding the making of the will ; unless he were taken sick 
abroad, and died before his return home. CI. Dig. 597, sec. 2. 

If the value disposed of by nuncupative will, exceed one hun- 
dred dollars, it must be proved, that the testator called on per- 
sons present to witness, that such was his will. lb. 

The statute in relation to nuncupative wills, is to be con- 
strued strictly ; and the statute in relation to wills does not 
apply to soldiers in actual military service ; or to mariners or 
seamen, being at sea. CI. Dig. 597, sec. 5. 

WILLS OF REAL ESTATE. 

Every person twenty-one years of age, and of sound mind, 
may dispose, by will in writing, of his lands, tenements, or here- 
ditaments, held in fee simple, or for life. CI. Dig. 596, sec. I. 

A will to dispose of real estate, must be signed by the testator, 
or by some other person for him in his presence, and by his 
direction. Ih. 

And it must be attested by three witnesses, signing their 
names in the presence of the testator. It is not necessary to 
prove, that the testator actually saw the subscribing witnesses 
sign their names ; it is sufficient, if, from their relative positions, 
he might have seen them sign. CI. Dig. 596, 5ec. 1. 12 Al. R. 
687, Hilly. Barge. , . 

A will purporting to dispose of real estate, does not apply to 
real estate acquired by the testator between the making of the 
will and the death of the testator. 



WILLS. 



REVOCATION OF WILLS. 



A will is at all times revocable by the testator. But no will 
in writing, or bequest therein of goods and chattels, shall be re- 
voked by any subsequent will, codicil, or declaration, except the 
same be in writing. CI. Dig. 597, sec. 5. 

The presumption of lavv^ is, that the cancellation or oblitera- 
tion of a will, by the person who made it, is a revocation : but 
this presumption may be rebutted by evidence. If a man, by 
mistake, throw ink instead of sand on his will, the instrument 
will be defaced ; but this will not be a revocation, for that de- 
pends on the intention of the testator. 

The legal effect of the act of cancellation, or obliteration, de- 
pends on the intention. If the maker of the will performs any 
act of cancellation or destruction, and he does all that he had 
intended to do, in completing the act, the will is thereby revoked, 
even though the cancellation or destruction of the paper be not 
complete. But if the act of cancellation or destruction, intended 
by the testator, has not been finished by him, — as where he has 
been stopped by a bystander, while performing it ; and he 
proceed no further in cancelling or destroying the instrument; 
this is not, in law, a revocation. 

If the testator tear off his signature at the end of the will, 
this is deemed a revocation of the whole. But if he obliterate 
only a particular clause, this is a revocation of no more than is 
obliterated. 

When a testator performs any act, which, standing by itself, 
would be a revocation of a will made by him — as if he draw 
lines of cancellation across it, or tear off his signature; and it 
appear by evidence, that he intended such revocation in order 
to give effect to a different disposition of his property ; and the 
new instrument intended for this purpose cannot be sustained ; 
then the first will is not revoked. 

When a will has been kept by the testator in his possession, 
and after his death it is found among his repositaries, cancelled 
■or obliterated, the law presumes, that the cancellation or oblit- 
eration was performed by the testator, with the design to revoke 
■such will ; and this will be a revocation. 

A will may be revoked by another will, subsequently made, 
2* 



6 WILLS. 

contrary to, or inconsistent with the first. And for this pur- 
pose, it is not necessary that the latter should expressly revoke 
the former. But if the two wills can stand tegether, they will 
both be sustained. And if the last made be inconsistent in part 
wuth the first, but do not expressly revoke the first, then the later 
revokes the earlier, only so far as they are inconsistent with 
each other. 

If the contents of the later will be not known, it does revoke 
the first. 

A will of personalty may be partially revoked by a subsequent 
unfinished will, which, by the act of God, the testator has been 
prevented from completing. The two instruments shall stand 
together, as the will of the deceased, and operation will be given 
fro tanto, to the latter, on proof, as in other cases of unfinished 
wills, that it expressed the final intention. It revokes the first, 
so far as the two are inconsistent. 

A codicil, being dependent on the will, the revocation of the 
will is, in general, a revocation of the codicil. But a codicil 
may be disconnected with the will, and independent of it ; and 
may remain in force, when the will has been revoked. This 
depends on the intention of the testator. 

An act, which, of itself, would be a revocation, will not have 
that effect, if it be done under a false impression as to the facts 
leading to it. As where the testator gave legacies to the 
grand-children of his sister, and afterwards, by a codicil, re- 
voked those legacies, giving as his reason, that these persons were 
dead : on proof that the legatees were not dead, it was held, 
that the legacies were not revoked. 

If an earlier will has been revoked by a later will, and the 
last be itself revoked, the eflfect as to the revival of the last will, 
depends on the intention of the testator, to be ascertained by 
the circumstances that may be proved. 

If an earlier will be revoked by a later will, and the testator 
afterwards republish the first, this republication is a revocation 
of the will which had been last made. 



CONSTRUCTION OF WILLS. 



WILLS LOST OR DESTROYED. 



The contents of a will which has been lost or destroyed, 
either by accident or design, or by the testator, while insane, 
may be established in the prabate court, on an issue submitted 
to a jury ; and the probate should declare, that the will in this 
form is established, until a more authentic copy can be brought 
in. 3 Port. 51. Appersonv. Cottrell, 11 CI. R. 596, McBeth 
V. McBeth. 

REPUBLICATION. 

If an earlier will be revoked by a later will, and then the first 
be republished, the first will be revived, and will have the same 
effect, as if it were then first made, so as to dispose of real estate 
acquired between its first execution, and its republication. But 
a republication, to have effect on real estate, must have all the 
requisites demanded by the statute for wills disposing of real 
estate. 

A will made by a woman before, or during coverture, will be 
made valid by republication, after the coverture is terminated. 
And a will made by a girl under twelve, or a boy under four- 
teen years of age, will be made valid by republication after the 
attainment of those ages, respectively. 

CONSTRUCTION OF WILLS. 

The following are the principal rules for the construction of 
wills. 

1st. The intention of the testator is to be ascertained ; and a 
will must not be so construed as to defeat that intention, when 
known. 

2d. Technical words are not necessary, in order to give effect 
to the intention of the testator. As when the testator used 
the words, " also my personal estate," and it was clear on the 
face of the will, that he understood by those words, all the prop- 
erty of any kind, over which he had an absolute power of dis- 
posal, it was held, that real estate passed under this description. 

3d. If technical words are used in a will, they are to be un- 



g CONSTRUCTION OF WILLS. 

derstood in their proper legal sense, unless the context clearly 
shows a different intention. Technical words are to have their 
legal effect, unless it is clear, from other and inconsistent words, 
that the testator meant otherwise. 

4th. The construction of the will, is to be made upon the en- 
tire instrument ; and not on its parts, disjointed. And all itg 
parts are to be construed with reference to each other. 

5th. The court is to give effect to every word of a will, pro- 
vided such effect can be given, consistently with the general 
intent of the whole will, taken together. But when it is impos- 
sible to form one consistent whole, the separate parts being irre- 
concilable, the latter part will be sustained. But the rule is 
attended with this modification, that the general intent, although 
first expressed, will overrule the particular intent last expressed. 

6th. The will must be so expounded as, if possible, to pursue 
the intention of the testator. In order to maintain the clear 
intention, as apparent on the whole will, v/ords and limitations 
may be transposed, supplied, or rejected. But words are not to 
be rejected, if they admit of a rational construction as they stand. 
"Or" may be construed "and," and vice versa. "If" may be 
construed " when." But a mistake cannot be corrected, nor an 
omission supplied, unless it clearly appear, by fair inference from„ 
the will as a whole. An express bequest cannot be controlled, 
by the reason assigned for it. The reason assigned, may aid in 
the construction of doubtful words ; but it cannot justify the re- 
jection of words that are clear. And the plain, clear construc- 
tion is not to be controlled by any consideration of the charac- 
ter of the bequest. 

8th. The intention of the testator is not to be set aside, for 
the reason, that it cannot take effect to the full extent ; but it 
is to be sustained as far as may be practicable. 

MODES OF DESCRIBING A LEGATEE. 

Children. The term " children" does not, in general, apply 
to any but the immediate descendants of the person named. It 
does not, in general, include grand-children. But there are 
cases in which it is construed to extend to grand-children, as 
when there is no child in existence at the date of the will ; or 



CONSTRUCTION OF WILLS. \3 

when the testator uses the terms " issue" and " children," indis- 
criminately. As issue includes grand-children, it appears that 
the testator intended to embrace them, when he used the word 
"children." 

Natural children who have acquired the reputation of being 
the children of a particular person, prior to the date of the will, 
may take under the description of "children" of that person. 
And they may take under that description, in participation with 
legitimate children, when such intention appears from the w^ill. 
But prima facie " children" means legitimate children ; and 
extrinsic evidence is not admitted for the purpose of showing 
that natural children w^ere intended under that term. 

Generally, the term " children" includes all of the class men- 
tioned, who may be in existence at the time of the death of the 
testator ; and among them is included a posthumous child. But 
when it appears from express declaration in the will, or clear 
inference from it, that the testator intended those who answer- 
ed to the description at the date of the will, such construction 
must be given. 

When the distribution of the fund bequeathed, is to be made 
among the legatees at a particular time subsequent to the death 
of the testator, the term " children" will include all of the class 
designated, who may be in existence at such time of distribu- 
tion. A legacy to " the children of A,, when his eldest son shall 
be twenty-one years of age," will embrace all the children of 
A. who may be in existence at the time mentioned, though born 
of a subsequent marriage. But cases may occur, where the 
whole context will show a different intention ; and that inten- 
tion, when ascertained, must prevail. 

When there is a legacy for life or years, with remainder to 
" the children of A.," all the children of A. who are in existence 
at the time of the death of the testator, then take vested inter- 
ests, transmissible to their representatives, should they die be- 
fore the termination of the particular estate. And all the 
" children of A." who may come into being before the particular 
estate ends, take a vested interest as soon as they come into 
being, which in like manner, on their death, is transmissible to 
their representatives. 



10 CONSTRUCTION OF WILLS. 

Grand-children. This term does not, in general, include 
great-grand-children ; but all the distinctions in relation to the 
enlargement of the term " children," apply to the term " grand- 
children." 

" Nephews and Nieces' do not in general include great-ne- 
phews, or great-nieces ; and the rules stated for the construction 
of the term " children," apply to these terms. 

Second Cousins have been considered as extending to cousins 
in the third degree. But this seems to be contrary to the general 
rules of construction. 

Heirs. A devise of real or personal estate to " A. and the 
heirs of his body," is an unlimited grant of the property to A. 

A devise of real estate to A,, in which no mention is made of 
his heirs, conveys to him in fee simple, if a less estate be not lim- 
ited by express words. CI. Dig. 156, sec. 33. 

When the word " heirs" is used to denote the persons who 
are to hold in succession, and not the quantity of the estate, it 
means such persons as would succeed to the property, according 
to the laws regulating descent and distribution. 

Issue. A bequest of real or personal estate to " A. and his 
issue," conveys the property absolutely to A. 

In general, the term " issue" will embrace all who may be 
descended from the person named, including children, grand- 
children, and great-grand-children. But if it appear by just in- 
ference from the will itself, that the testator used the term in a 
more limited sense, as when it was coupled with the word " pa- 
rent," as its correlative term, the word " issue" is construed to 
mean children only. 

Descendants. This term comprises all the individuals de- 
scended from the stock or family referred to, and it includes 
children, grand-children, and great-grand-children, who will all 
take per capita. 

Relations. A legacy to " relations," generally, without enu- 
merating any of them, is construed to mean those kindred who 
would be entitled to distribution under the law, if the deceased 
had died intestate. A legacy to each of his " relations by blood 
or marriage," is confined to kindred who would be entitled un- 
der the statute of distribution, and to persons married to such 



CONSTRUCTION OF WILLS. 11 

relations. And the same rule applies, when the bequest is to 
" near relations," or to " poor relations." 

A wife cannot, in general, claim under a legacy to " the rela- 
tions" of her husband ; nor can a husband, in general, claim 
under a legacy to " the relations" of his wife. 

The term " nearest relations" is not construed according to 
the right under the statute of distribution. Where a testator 
had brothers and sisters living at the time of his death, and also 
nephews who were the children of a deceased brother, a legacy 
to be equally distributed among his "nearest surviving relations" 
will go to the brothers and sisters, as nearest, to the exclusion 
of the nephews. 

A bequest to " my nearest relation," in the singular, if there 
are several persons nearest of kin, in the same degree, will be 
divided equally among them. 

Next of kin embraces those only who are related to the testa- 
tor by blood ; and equally, whether of the whole, or of the half- 
blood. A legacy to the next of kin is construed as a legacy to 
the nearest relations, and not according to the right under the 
statute of distribution. Under this bequest, a surviving brother 
will be entitled, to the exclusion of a child of a deceased brother. 

Family. This word in a bequest, generally has the same 
meaning as kindred, or relations. But the construction given 
to the term may be modified by the context. 

-' MISTAKE IN THE NAME OR DESCRIPTION OF A LEGATEE. 

The general rule is that when there is a mistake in the name 
or description of a legatee, if there is no reasonable doubt as to 
the person intended, the mistake will not frustrate the bequest. 

1st. The intention of the testator may be ascertained from 
the context, in the will. If the mistake occur in the name of the 
legatee, it may be corrected by referring to the description ; as 
where the legacy is to "my namesake, Thomas, the second son 
of my brother;" and the testator's brother has no son named 
Thomas, but his second son is named William : in this case,**" 
there is sufficient certainty in the description, to correct the 
mistake in the name ; and the second son will be entitled to the 
legacy, although his name is not Thomas. 



12 CONSTRUCTION OF WILLS. 

And an error in the description may be obviated by certainty • 
in the name : as where the legacy was to " Charles Miller Stan- 
den, and Caroline Eliz. Standen, legitimate son and daughter of 
Charles Standen, now residing with the company of players," 
and it appeared that they were illegitimate children ; there was 
sufficient certainty in the names to identify the legatees, and to 
correct the mistake in the description. Their claim to the lega- 
cy was sustained. 

And an omission, by mistake, of the name of a legatee, may 
be supplied by the context ; as when the testator gives his 
estate, to be divided among his seven children ; and in enumer- 
ating them, he states only six names ; the seventh, not named, 
will be entitled to a proportional part. Or when he makes a 
bequest to his six grand-children ; and in stating their christian 
names, he mentions one of them twice over, and altogether 
omits another ; the one whose name has been omitted, will be 
entitled to his proportional part. In these cases, the context in 
the will, shows the intention of the testator. The mistake may, 
in certain cases, be rectified by extrinsic evidence. When an 
ambiguity as to the name, not apparent on the face of the will, 
is raised by the introduction of parol evidence, parol evidence 
may be used to explain the ambiguity. As when the testator 
devises to his " son Thomas," and it appears by parol evidence^ 
that he has two sons of that name, parol evidence may be ad- 
mitted to show which of them the testator intended. When 
such ambiguity arises, the court may inquire into every material 
fact relating to the persons who claim under the will, and to the 
circumstances of the testator, and of his family, and affairs, in 
order to ascertain the person intended by the testator. 

In general, an ambiguity apparent on the face of the will, may 
not be explained by parol. As where a blank has been left for 
the name of the devisee, parol evidence is not admissible to 
show, whose name was intended to be inserted. But where a 
blank was left for the christian name only, the family name 
having been inserted, parol evidence was admitted to show the 
Individual intended. 



CONSTRUCTION OF WILLS. 13 



LEGACIES, GENERAL OR SPECIFIC. 

A legacy is general, when it is so expressed as not to be a 
bequest of a particular thing, distinguished from all others of the 
same kind ; and a legacy is specific, when it is so expressed as 
to be a bequest of a specified part of the testator's estate, which 
is so distinguished. If the bequest is in these words, " I give a 
diamond ring," it is a general legacy, which may be satisfied by 
the delivery of any ring of that kind. But if the words are, "I 
give the diamond ring presented to me by A." the legacy is 
specific, and can be satisfied only by the delivery of the partic- 
ular ring specified. 

The distinction between these different kinds of legacy, is 
very important, as will be more fully seen, in considering the 
abatement, and the ademption of legacies. 

If there be a specific bequest of a thing described as then in 
existence, and no such thing did exist among the testator's 
effects, the legacy must fail ; as when the legacy is of " my grey 
horse," and the testator had no horse, the executor is not bound 
to purchase a grey horse, in order to satisfy the legacy ; but the 
legacy fails. If the legacy is in general terms, of " a horse," 
the executor is bound to purchase a horse for the legatee, if the 
assets will admit of it. 

A legacy of quantity, is commonly, a general legacy ; but 
there are legacies of quantity, which are said to be in the na- 
ture of specific legacies. These are sometimes called demon- 
strative legacies. It is, for example, a bequest of a certain sum 
of money, to be paid out of a particular, specified fund. This 
legacy is so far general, that if the fund specified, be called in, or 
fail, the legacy will not for that reason fail ; but will be payable 
out of the general assets : and it is so far specific, that it will 
not be liable to abate, with general legacies, on a deficiency of 
assets ; provided the particular fund be sufficient. 

In doubtful cases, the court is inclined to consider the legacy 
as general, rather than specific. 



14 . CONSTRUCTION OF WILLS. 

LEGACIES OF MONEY, STOCK, DEBTS. 

Money. There may be a specific legacy of money ; as a 
legacy of a certain sum of money in a certain bag, or in the 
hands of A. But a legacy of a certain sum of money " to be 
paid in cash," is a general legacy. A legacy of money for a 
particular purpose, as to purchase a ring, or to purchase land, is 
a general legacy. 

Stock. A bequest of stock, if there are words specifying what 
stock, is specific ; as a bequest of " my stock" in a particular 
company ; or of a certain part of " my stock." But if the be- 
quest is, in general terms, of so many shares " of stock," it is 
general, for the testator may have intended that his executor 
should purchase so much of the stock mentioned, out of the gen- 
eral assets, for this legatee. ^ 

Debts. There may be a specific legacy of a debt ; as when 
the bequest is, of " the money owing to me by A. ;" or of " the 
money due to me on the bond of B." But where the legacy is, 
of a certain sum of money, to be paid out of a debt specified, 
this is not a specific legacy, but a bequest in the nature of a 
specific legacy. It has, against all general legatees, a prior 
claim to payment out of the debt specified, and is so far speci- 
fic ; but in another sense, it is general, for if the debt be not in 
existence at the death of the testator, or if it be insufficient to 
pay the legacies charged on it, this legacy will be entitled to 
satisfaction out of the general assets. 

BEQUEST CONNECTED WITH THE REALTY. 

Every bequest of land is specific, whether in fee simple, or for 
life, or for years. 

A bequest of a rent out of a term for years, is specific. But 
if it appear from the will, that the testator intended to give to 
the legatee, an annuity certain at all events, it is a bequest in 
the nature of a specific legacy, and if the particular rent should 
fail, the legacy will be payable out of the general assets. 



CONSTRUCTION OF WILLS. 15 

BEaUEST OF GENERAL PERSONAL ESTATE. 

A bequest of all the testator's personal estate, is a general 
legacy. But if the testator had personal estate at different 
places, a bequest of all his personal estate at one specified place, 
is a specific legacy. 

DESCRIPTION OF PROPERTY IN LEGACIES. 

" Goods," "chattels," " effects," standing alone, without words 
of qualification or limitation, are general terms, and include all 
the personal estate of the testator, as slaves, stock, bonds, notes, 
money, furniture, plate, &c. 

But when the bequest is, of " all my goods," or of " all my 
chattels" at a particular place, bonds and other choses in ac- 
tion do not pass, for they are considered to be title to things out 
of the place specified, and not things in it. 

A bequest of " household goods" will not pass goods in the 
way of trade, or business, which may be in the house ; nor 
will this bequest include articles, \\hose use is in their consump- 
tion — as supplies of victuals. Nor will it include guns, swords, 
or pistols. 

A bequest of " household furniture" includes all personal 
chattels, that may contribute to the use, or the convenience of 
the householder, or the ornament of the house : but it does 
not extend to goods in the possession of the testator in the 
way of trade. 

A bequest of " stock" on a farm, includes all moveable pro- 
perty on, or appertaining to the farm ; and it has been decided 
to extend to growing crops. 

A bequest of all the testator's " money," will pass cash and 
bank-notes. 

A bequest of a debt due on a particular security, will pass 
the capital only, and not arrears of interest due at the testator's 
death ; and a converse, a bequest of arrears of a debt, will not 
pass the principle. Scd quere. 



16' CONSTRUCTION OF WILLS. » 

LEGACIES, VESTED OR LAPSED. 

When money is bequeathed, to be invested in the purchase 
of an annuity for the Hfe of a legatee, and the legatee dies be- 
fore the money is laid out, or even before the fund is avail- 
able — as during the life of the person, after whose death the 
investment is to be made ; yet still it is a legacy vested at the 
death of the testator. ' , - 

If the legatee die before the testator, or before the happening 
of any other condition precedent to the vesting of the legacy, 
the legacy does not pass to the representative of the legatee, 
but lapses, and is extinguished ; and the property embraced 
in it, becomes a part of the estate, not disposed of 

1st. Legacies lapsed by the death of the Legatee, before the 
death of the testator. 

It is the general rule, that if the legatee die before the testa- 
tor, the legacy lapses, or is extinguished. 

Not only in bequests of chattels, in possession, but also in a 
bequest of a debt due by the legatee to the testator ; the same 
rule applies ; the legacy is extinguished by the death of the 
legatee before the death of the testator ; and the debt will re- 
main in force against the estate of the legatee, unless it appears 
from the language of the will, that the testator intended other- 
wise. Where the words were, " I devise to my brother, £2000; 
I also return him his bond for £400, with interest thereon, 
which he owes me ;" it was decided, that this was not a release 
of the bond ; but was a legacy, which lapsed by the death of 
the legatee in the life-time of the testator. 

A legacy to A, his executors, administrators, and assigns, is 
subject to the same rule, and will lapse by the death of the 
legatee in the life-time of the testator. For the words, " exec- 
utors, administrators, and assigns," are surplussage, and do not 
alter the nature of the gift. 

But if the legacy is so expressed, as to be payable at the tes- 
tator's death, and the words are, " to A, or his personal repre- 
sentatives," it will not lapse by the death of the legatee, in the 
life-time of the testator. For the language implies, that the 
testator looked to the alternative, and intended, that if the lega- 



CONSTRUCTION OF WILLS. 17 

tee should die before him, the representatives of the legatee 
should take the legacy. 

The general rule, as above stated, may be controlled, by the 
intention of the testator, that the legacy shall not lapse, appear- 
ing on the face of the will ; and by his substitution of the ex- 
ecutors or administrators of the legatee. But a declaration in 
the will that the legacy shall not lapse by the death of the leg- 
atee, will not prevent its lapse on the death of the legatee 
before that of the testator, unless the executor, or administra- 
tor, or some other legatee, be named in the will, to receive it. 

If a legacy be given to two persons jointly, and one of them 
die before the testator, the interest of the deceased legatee 
does not lapse, but survives to the other legatee. This case is 
not within the statute abolishing the right of survivorship in 
estates held jointly. 

But when legacies are to several legatees, as tenants in com- 
mon, — as where an aggregate fund is to be divided in equal 
shares among them, by name ; if any of them die before the 
testator, the share intended for such deceased legatee will lapse 
into the residue of the estate. 

The law is the same, as to survivorship in case of joint-ten-- 
ants, and lapse in case of tenants in common, when the testator 
revokes the interest originally given to one of them. 

But where a legacy is, to a class of persons, in general terms — 
as to the children of A, the death of one of them before the 
testator, will not cause a lapse of any part of the fund ; but it 
will go to the survivors. 

When a legacy is to one for life, with remainder to another — 
if the legatee of the life estate die before the testator, the leg- 
acy of the remainder over will not lapse, but wall take effect on 
the death of the testator. 

And if a legacy be to one, with a limitation over to another, 
provided the first should die before arriving at twenty-one 
years of age, or before the happening of any other event — if 
the first legatee die in the life-time of the testator, under the 
age limited, or before the happening of such other event, the 
legacy of the remainder over will not lapse, but will take ^flect 
on the death of the testator, 

3* ' ' 



18 CONSTRUCTION OF WILLS. 

2nd. Legacies lapsed, by the death of the legatee, after the 
death of the testato7\ 

If a legacy be made, without specifying the time at which 
it is to be paid, it is due on the day of the death of the testator. 

But when a future time is appointed in the will, for the pay- 
ment of the legacy, a question arises, whether it was the inten. 
tion of the testator, that the property bequeathed should vest 
at the time of his death, or at the day appointed for its payment. 

In ascertaining the intention of the testator in this regard, 
two rules are observed. 

1st. A bequest to a person, "payable," or, "to be paid," when 
he shall become twenty-one years of age, or at any other de- 
terminate time, creates in him an interest vested immediately 
on the death of the testator, transmissible on the death of the 
legatee, to his executor or administrator. For the words, 
" payable," or, " to be paid," refer to the time of payment, as 
different from the time of the gift ; leaving the gift, one thing ; 
and the time of its payment, a different thing. 

2nd. If the testator does not use the words, " payable," or, 
" to be paid," or words of like import ; and the legacy is given 
" at twenty-one years of age," or, " if," or, " in case of," or, 
" when," or, " provided the legatee shall arrive at twenty-one 
years of age ;" or at any other future, definite time — then the 
legacy will not vest until that time arrives ; and although the 
legatee survive the testator, if the death of the legatee hap- 
pens before the arrival of the time or period fixed, the legacy 
will not pass to the executor or administrator of the legatee, 
but will lapse. 

But these rules will always yield to the intention of the tes- 
tator, whenever, on examination of the whole will, that inten- 
tion appears to have been different. — As when a testator be- 
queaths a legacy to a person at a future time, in general terms ; 
and either gives him the intermediate interest, or directs that 
it shall be applied for his benefit ; this disposition of the inter- 
est shows the intention of the testator, that the legatee should 
at all events have the principal. And such a legacy vests at 
the death of the testator. But if the gift for maintenance is 
not coextensive with the whole amount of interest, or if it is 
drawn from a different fund, there is no ground for the infer- 



CONSTRUCTION OF WILLS. 19 

ence, that the testator intended the property at all events to go 
to the legatee ; and if, before the arrival of the time, the lega- 
tee die, the legacy will lapse. 

When the interest or dividends are the subject of the be- 
quest, and such language is used as will show, that the principal 
itself was to be given at the future designated time — the legacy 
will not create a vested interest in the principal, before the 
arrival of the time designated. As where the testatrix gave 
to A, the dividends on certain stock, which should become due 
after her death, until he should arrive at the full age of thirty- 
two years ; and that, at that age, her executors should transfer 
the principal sum to him, for his own use. A died under that 
age ; and it was decided, that the legacy lapsed. 

LAPSE OF LEGACIES PAYABLE OUT OF REAL ESTATE. 

In the English courts, the rule of law, that when the gift^ 
and the time of payment, are distinct, the legacy does not lapse, 
and which is applicable to legacies of personal property, is not 
applied to legacies payable out of real estate. In such cases, 
the legacy is held not to vest before the time fixed for its pay- 
ment ; and if the legatee die before that time, the legacy is held 
to lapse. To this last rule, there is an exception, when each 
estate is bequeathed to one for life, and is charged, after his 
death, with a legacy for another. If the last legatee die during 
the continuance of the first estate or interest, the legacy to 
the last legatee, will not lapse, but will pass to his executor or 
administrator. 

The rule above mentioned, as applicable to legacies of per- 
sonal property, is established by the ecclesiastical courts, whose 
jurisdiction did not extend to devises of real estate. These 
being under the cognizance of courts of equity, these courts 
have established the rule as applicable to legacies payable out 
of real estate, being influenced by partiality for the owner of the 
inheritance. As the orphans court has cognizance of wills of 
real, as well as of personal estate, it ought to apply to legacies 
of both kinds, the rule of the ecclesiastical courts. 

But in all of these cases, the rule of construction will yield 
to a direction in the will, showing what is the intention of the 
testator. 



20 CONSTRUCTION OF WILLS. 

LAPSE OF LEGACIES CHARGED ON REAL AND PERSONAL ESTATE. 

If a legacy is charged on a mixed fund, consisting both of 
real and of personal estate, the personal estate is considered as 
the primary fund, and is the first to be applied to the payment 
of the legacy ; and the real estate is auxiliary. In relation to 
the personal property, the legacy is controlled by the same 
rules, as if it were payable out of personal property alone ; and 
so far as the real estate is to be resorted to, it is to be governed 
by the same rules, as if it were payable out of real estate alone. 

LEGACIES ON CONDITION. 

A conditional legacy is one, the operation of which depends 
on the happening, or not happening of some uncertain event, 
by which it is to be confirmed or defeated. No precise words 
are necessary to create such a condition ; but whenever the 
language used, shows the intention of the testator to make a 
condition, that intention will be sustained. 

Conditions are precedent or subsequent. In a legacy subject 
to a condition precedent, no interest is vested in the legatee, 
until the condition is performed. But when the condition is 
subsequent, the interest is vested in the legatee, in the first in- 
stance, subject to be divested, on the non-performance, or 
breach of the condition. 

In a legacy of personal estate, if the condition precedent is 
impossible, the bequest is discharged of the obligation, and is 
absolute. But if the condition precedent is rendered impossi- 
ble by an event not known to the testator, and contrary to his 
belief or expectation, the impracticability of performance will 
defeat the legacy. As when the legacy is given, on the condi- 
tion that the legatee marry the testator's daughter, and she 
happens to be dead at the date of the will, or if she were living 
at that time, but dies before the nuptials can be solemnized — 
the legacy is void. 

In a bequest of real estate, with a condition precedent that 
is impossible, the devise is void. 

If the condition precedent requires the performance of an 
act wicked in its own nature, {malum in se,) the bequest is 



■M- 



CONSTRUCTION OF WILLS. 21 

void, whether of real, or of personal estate. But if the condi- 
tion precedent require the performance of an act that is illegal, 
merely because it is against a rule, or the policy of the civil 
law, the legacy of personal property will be discharged of the 
illegal condition, and be valid. But a legacy of real estate, 
with such illegal condition precedent, will itself be void. 

When the performance of a condition subsequent, is illegal, 
the bequest, whether of real, or of personal property, is valid, 
and free from the condition. 

If the condition precedent be performed cy pres, that is, as 
far as may be practicable ; or at least, so as substantially to 
fulfill the testator's intention — it is sufficient. The following 
is an example of such performance. A be(|ueathed a legacy to 
B, on condition that B erect a monument to A within three 
days after the death of A. If B failing literally to comply with 
the condition, erect a monument within a reasonable time after 
the death of A ; this will be such a performance of the condi- 
tion, as will entitle B to the legacy. -Or if the condition pre- 
cedent require the legatee to execute a certain release within 
a time specified ; and the legatee, failing to execute the release 
within the time specified, should execute it within a reasonable 
time ; on this performance, he will be entitled to the legacy. 

But there are cases, in which the observance of the time 
mentioned in the condition, is material to the performance of it, 
and then, the condition must be performed within the time 
limited, to entitle the legatee to the legacy. 

It is a general rule, that a condition subsequent must be per- 
formed with strictness ; because its effect is, to divest an estate 
already vested. 

A condition, that the legatee shall not dispute the will, is, in 
general, considered to be in terror em merely ; and it does not 
operate as a forfeiture of the legacy, on the legatee's disputing 
the will. But when this condition is connected with a clause 
giving the legacy to another person, on breach of the condi- 
tion ; then, if the legatee contest the will, his interest in the 
legacy will thereby be defeated; and the legacy will vest in 
the substituted legatee. However, if the executor is the sub- 
stituted legatee, this is regarded to be in terrorem, and is not 
enforced ; but if the will directs, that on breach of this condi- 



» / ■ ■ ■ >•••** 

22 CONSTRUCTION OF WILLS. 

tion, the legacy shall fall into the residue, the residuary legatee 
will be entitled to it. 

Conditions in restraint of marriage, are subject to the fol- 
lowing rules. 

Conditions in restraint of marriage, which do not, directly 
or indirectly, import an absolute injunction to celibacy, are 
valid. In this view, conditions restraining marriage under 
twenty-one, or other reasonable age ; or without the consent 
of the executor, or the guardian, or other person ; or requiring, 
or prohibiting marriage with particular persons ; and others of 
similar character — are legal and valid. 

A condition in restraint of marriage without the consent of 
the person designated, no limitation as to age being connected 
with it ; is, in general, considered to be in terrorem ; and is 
not enforced, if there be no disposition over, of the legacy. 
But if the will directs, that, on breach of this condition, the 
legacy sh^ll pass to another legatee ; then the condition will 
be enforced in favor of the substituted legatee. 

When, in conditions precedent, the consent of guardian, 
executor, or trustee, to the marriage of the legatee, is required 
in order to give effect to the legacy, that consent must be ob- 
tained, before, or at the marriage. Consent given after the 
marriage, will not be a fulfillment of the condition. 

When there are several executors, guardians, or trustees, and 
the consent of all of them is required ; if a part of them be 
dead, the consent of the survivors is sufficient. 

If there are several executors, or other persons, whose con- 
sent is necessary, and the condition is subsequent, so that mar- 
riage without the consent of those several persons, would divest 
the legacy, the death of one or more of them, will discharge 
the condition : for its fulfillment has become impossible. 

A general consent, given after the legatee has attained to 
majority, is sufficient; and an unconditional consent, once 
given, cannot be retracted, unless for good reasons, moral or 
pecuniary, afterwards discovered. But the consent may be 
conditional ; and it must then be considered in connection 
with the condition, whether fulfilled or not. And consent may 
be implied ; as when the executor is cognizant of the addresses 
for marriage, and intimates no disapprobation. For then, his 



CONSTRUCTION OF WILLS. 23 

silence implies consent. Qui tacet, satis loquitur. Or if the 
legatee married in the life-time of the testator, with his con- 
sent., or his subsequent approbation, this will supersede the ne- 
cessitiy for the consent of the executor, and will sustain the 
legacy. 

A first marriage with consent, is a sufficient fulfillment of the 
condition ; and a second marriage without consent, will not 
cause a forfeiture of the legacy. 

When a bequest is made to one at twenty-one years of age, 
or on marriage with consent, with a clause of forfeiture on 
marriage without consent — on the legatee's attaining the age 
of twenty-one, he is entitled to the legacy, discharged of the 
condition in relation to marriage. 

If the executor or trustee, whose consent to the marriage 
is a condition of the legacy, should refuse to give his consent, 
chancery will enquire into the proposed marriage, and deter- 
mine on its propriety. * 

When the testator bequeaths property to his wife " so long 
as she continue his widow, ' if the will provides no subsequent 
disposition of the property included in the legacy, the condi- 
tion will be considered as in terrorem. But if the will direct 
that the legacy shall pass to another, in the event that the widow 
marry, then the condition will be enforced in favor of the sub- 
stituted legatee. 

A repugnant condition, that is, a condition inconsistent with 
the gift, is void ; and leaves the legacy unimpaired. A condi- 
tion restraining the legatee from spending, or disposing of the 
property, is repugnant and void. But a condition restraining 
him from disposing of it to a particular person, or before a 
specified time, is not repugnant. 

In legacies to executors, given to them in that character, and 
not merely as marks of personal regard, there is an implied 
condition, that such persons shall perform the duties of execu- 
tor. And in such cases, two questions arise : 1st, when is the 
legacy given to the legatee, in the character of executor ? and 
2d, what is a sufficient performance of the duties of executor ? 

The general presumption is, that a legacy to one who is ap- 
pointed executor, is given to him in that character ; and in 
order to repel this presumption, it is incumbent on him to show 



24 CONSTRUCTION OF WILLS. 

something in the nature of the legacy, or other circumstances 
arising in the will, leading to the opposite conclusion — and that 
the bequest for the person named as executor, is designed for 
him, independently of that character. If this conclusion be 
established, he will be entitled to the legacy, whether he act as 
executor or not. 

If the executor procure probate of the will, with intention 
to act under it, that will be a sufficient performance of the 
condition ; or if he unequivocally manifest an intention to act 
in the executorship, by performing some of its first duties, and 
is prevented by death from further entering on the office, this 
also will be a performance sufficient to give effect to the legacy. 

But if, in other respects the conduct of the executor shows, 
that it was not, bona fide, his intention to execute the will, the 
mere act of procuring probate, will not entitle him to the legacy. 

^ CUMULATIVE LEGACIES. 

Legacies are said to be cumulative, in contradistinction to 
such as are merely repeated in the will. When a testator has 
twice bequeathed a legacy to the same person, it becomes im- 
portant to determine, whether the latter clause is merely a repe- 
tition of the first ; or is in addition to the first, and cumulative 
on it. The intention of the testator, when ascertained, is to 
be followed. 

Sometimes the will contains internal evidence, that but one 
gift is intended ; as when, in the two different clauses contain- 
ing the legacy, the same motive is expressed, and the same sum 
is given. This double coincidence leads to the conclusion, 
that but a single gift was intended by the testator, the latter 
clause being only a repetition of the former. But a coinci- 
dence on one only of these points will not raise the inference 
of the intention of but one gift. 

Or the will may contain internal evidence, that two gifts 
were intended by the testator, the latter being cumulative on 
the former ; as where one is given, generally, and the other for 
a purpose expressed ; or where one reason is assigned for the 
former, and another reason for the latter ; or where the lega- 
cies are not of the same kind, the one being an annuity, and 



CONSTRUCTION OF WILLS. 25 

the other, a sum of money ; or where there are other differ- 
ences between the two clauses. 

When there is no internal evidence of the intention of the 
testator, the following rules are observed, for the purpose of 
ascertaining that intention. 

1st. If the same specific thing is bequeathed twice to the 
same legatee, in the same will, — or in the will and a codicil, — ■ 
then there is but one legacy. 

2d. When the same amount is bequeathed to the same indi- 
vidual, in one instrument, (whether will or codicil,) there is 
but one legacy. 

3d. When, in two clauses, unequal amounts are given to the 
same person, in the same instrument, there are two legacies, 
the latter being cumulative on the former. 

4th. When two legacies are given, one in the will, and the 
other in a codicil, or in two different codicils without expres- 
sion of motive, or other explanation, whether the amounts be 
the same, or not, the latter is cumulative on the former. 

In relation to cumulative legacies, parol evidence is some- 
times admissible, to explain the intention of the testator. 
When there are two clauses, each containing a legacy to the 
same individual ; and one of the rules above stated, raises the 
presumption, that but one legacy was intended ; parol evidence 
is admitted, to repel this presumption ; and to show, that the 
testator intended the double gift which he has expressed. Such 
evidence does not contradict the written instrument ; it sus- 
tains that instrument, against the presumption of law. 

LEGACY BY A DEBTOR TO HIS CREDITOR. 

In courts of equity, it is a general rule, that when a debtor 
bequeaths to his creditor, a legacy equal to, or exceeding the 
amount of the debt, it shall be presumed to be intended as a 
discharge of the debt ; and that, if the creditor accept it, he 
thereby releases the debt. But this rule seems not to be well 
supported by reason ; and it is subject to many exceptions ; as 
when the debt was not contracted, until after the will was 
made ; or when the debt is due on account current ; or when 
it was due on a negotiable security ; or when the legacy is con- 
4 



26 CONSTRUCTION OF WILLS. 

tingent, or uncertain ; or when the legacy is not payable imme- 
diately after the death of the testator ; or when the legacy is 
different in kind, from the debt ; or when it is a legacy of a 
specific chattel. 

And the presumption, that the legacy was intended to be a 
satisfaction of the debt, may be counteracted by a clause in 
the will, showing a different intention. 

The rule above stated, that the legacy is a discharge of the 
debt, when applicable, extends to a legacy given by a parent to 
a child, and to a legacy from a husband to his wife. 

Whether parol evidence may be received, to repel the pre- 
sumption raised by the rule, is a question left doubtful, by con- 
tradictory decisions. 

LEGACY BY A CREDITOR TO HIS DEBTOR. 

When a legatee was indebted to the testator, the executor 
may retain the legacy, in part, or in full, in satisfaction of the 
debt. 

When a legacv is to a wife, whose husband was indebted to 
the testator, in an action at law, by husband and wife, for the 
legacy, the executor would be permitted to retain, to the amount 
of the debt. But in a court of equity, he would be compelled 
to pay over one-half, or other large part, to be settled on the 
wife, as a provision for her support. 

But if the wife die before payment or settlement of the leg- 
acy, the executor may retain it, in discharge of an equal 
amount due by the husband to the testator. (But see the act 
of 1847.) 

When a creditor makes a legacy to his debtor, and does not 
use such language as will evince an intention to release the 
debt ; and the securities of the debt remain uncancelled, at 
the death of the testator, no inference arises, that the legacy is 
a release, or extinguishment of the debt. If such intention is 
not clearly expressed in the will, or plainly implied from it, it 
may be established by parol evidence. 



CONSTRUCTION OF WILLS. 27 

APPOINTMENT OF A DEBTOR, EXECUTOR. 

The appointment of a debtor to be executor, does not, of 
itself, extinguish the debt. CI. Dig. 228. sec. 35. 

APPOINTMENT OF A CREDITOR, EXECUTOR. 

On the appointment of a creditor, to be executor of a solvent 
estate, he may retain money from the assets, sufficient to satisfy 
his debt. And in this view, if he have assets sufficient, his 
appointment is, suh jnodo, an extinguishment of his debt. And 
the law is the same, when one of several joint-debtors makes 
the creditor, his executor. The assets in his hands so far ex- 
tinguish the debt, that the creditor executor cannot maintain 
an action against the other joint-debtors. And the same law 
is applicable, when the debtor appoints his creditor to be one 
of several executors ; provided, the creditor accept the ap- 
pointment. 

ADEMPTION OF SPECIFIC LEGACIES. 

If a specific legacy is not remaining in specie, at the death 
of the testator, but has been converted, or disposed of by him, 
it is considered as revoked by ademption. If the legacy be of 
a piece of cloth, and the testator either sell it, or have it made 
into a garment; the legacy is adeemed, and the legatee takes 
nothing. If a debt be bequeathed, and then payment of it be 
received by the testator ; this is an ademption of the legacy ; 
and a part payment of the debt, to the testator, is an ademp- 
tion pro tanto. And the legacy is adeemed, whether the cred- 
itor pay the debt, without demand, or on the acquisition of the 
testator. 

But a legacy of stock is not adeemed, by its being transferred 
to a different fund, by operation of law ; nor when the stock is 
transferred, with the testator's consent, from the name of a 
trustee, to his own ; nor from the name of one trustee, to that 
of another trustee ; nor from the specified fund to a fresh 
security. 

The ademption of a specific legacy will be effected, by the 
testator's removing it from the place mentioned in the will, 



28 CONSTRUCTION OF WILLS. 

when the locality is deemed essential to the bequest ; as where 
the bequest is, of all the testator's household goods, in his house 
at A, at the time of his death ; and he afterward remove them 
to another place. 

A mere republication of a will does not revive a legacy, 
which has been extinguished by ademption. But if, between 
the ademption, and the republication, the testator has acquired 
other property of the same description with that bequeathed, 
it appears reasonable that this substituted property should pass 
under the legacy ; as the republication is a present declaration 
of the present intention of the testator. 

The doctrine of the ademption of legacies does not apply to 
what are called, demonstrative legacies, that is, legacies of so 
much money, payable out of a fund designated. In these 
cases, if the fund designated should not be in existence at the 
death of the testator, the legacy remains, to be paid out of the 
general assets. 

ADEMPTION OF LEGACIES, BY PORTIONS TO CHILDREN. 

It is the doctrine of courts of equity, that, if a father makes 
a legacy to a child, and afterwards advance a portion for that 
child, this will be an ademption of the legacy. And this doc- 
trine applies, even though the sum advanced, be less than the 
sum bequeathed. 10 Al. R. 72. Roberts and wife v. Weath- 
erford. 

But this presumption of ademption is repelled, when the 
property bequeathed, is not of the same character with the 
property advanced as a portion ; or when the testamentary 
provision was certain, and the subsequent advancement de- 
pends on a contingency ; or when the legacy, or the advance- 
ment is expressed to be made in lieu of, or in compensation for 
an interest to which the child was entitled ; or where the be- 
quest to the child is of a residue, or part of a residue. 

The presumption of ademption may be confirmed or de- 
stroyed, by parol evidence, showing what was the intention of 
the parent. 

The doctrine of presumed ademption, by portions subse- 
quently advanced, applies only when the testator is the paren 



CONSTRUCTION OF WILLS. 29 

or stands in loco parentis. When the testator is not in the 
natural, or the assumed relation of parent to the legatee, the 
legacy will not be adeemed by a subsequent advancement, un- 
less it be given for a particular purpose, and the advancement 
be made for the same purpose ; or unless it otherwise legally 
appear, that the advancement was intended as a substitution 
for the legacy. 

All of these rules yield to clear indications of a different in- 
tention, had by the testator. 

ABATEMENT OF LEGACIES. 

When the assets are not sufficient to pay the debts, and sat- 
isfy the specific legacies ; or when, the debts being paid, the 
general assets, (that is, the property not specifically bequeathed,) 
are not sufficient to satisfy all the general legacies, — then the 
general legacies all abate proportionally. And a general lega- 
cy to the executor, has no preference. 

The residuary legatee has no right to call on the other gen- 
eral legatees, for abatement ; even though there was, at first, 
a residue, which has been consumed by the devastavit of the 
executor. 

If a general legacy is provided for one, in consideration of a 
debt due by the testator to, or the relinquishment of any right 
by, such person ; this general legacy will not abate with the 
other general legacies ; but will have a preference over them, 
in payment. And this preference will be maintained, even 
though the legacy exceed in value, the debt released, or the 
right or interest relinquished by the legatee, in consideration of 
the legacy. 

A legacy which is general in its nature, will not be exempted 
from abatement with the other general legacies, by reason of 
its being applied to a particular purpose — -as a legacy of a cer- 
tain sum to executors, for their care and trouble ; or of a sum of 
money, for mourning rings. 

An annuity charged on the personal estate, is a general legacy, 
and subject to abatement. 

There may be features in the will, giving to one general leg- 
acy, a preference over others — ^as where the testator, in his will, 
4* 



30 ~ APPOINTMENT OF EXECUTORS. 

directs such a preference. Or where the testator, after making 
some genera] legacies, in his will expressed a belief that there 
would be considerable surplus from his personal estate, beyond 
the legacies already made ; and he then made several additional 
general legacies : but it happened, that there was no surplus. 
In this case, the first class of general legacies was preferred; and 
they were not subjected to abatement for the benefit of the last 
class, which was excluded. This seemed most consonant with 
the intention of the testator. 

When there is a deficiency in the assets, a general legacy does 
not acquire a preference over other general legacies, by a direc- 
tion in the will, " that it shall be paid immediately after the death 
of the testator, out of the first moneys received by the executor." 
Nor will a preference be due to a general legacy expressed in 
this way, " imprimis," or, " in the first place, I give one thou- 
sand dollars to A." 

What has been called a demonstrative legacy, that is, a leg- 
acy of a certain sum of money, with reference to a particular 
fund for payment, being in the nature of a specific legacy, pre- 
serves its lien on the fund designated ; and until the failure of 
that fund, it is not subject to abatement with the general 
legacies. 

While any part of the general assets remain, property specifi- 
cally bequeathed, is not liable to be applied to the payment of 
debts. But when the assets not specifically bequeathed, are 
insufficient for the payment of all the debts, then the specific 
legacies must abate, in due proportion among themselves, to 
supply the deficiency for the payment of debts. And a legacy 
in the nature of a general legacy, is embraced in this rule ; and 
also a specific devise of real estate. 

APPOINTMENT OF EXECUTORS. 

An executor derives his oflfice from appointment in the will. 

His appointment may be express ; or it may be constructive ; 
when,by words of circumlocution, the testator designates the per- 
son who is to execute the will — as if he say, that he commits 



APPOINTMENT OF EXECUTORS. 31 

his goods to A., to pay his debts, and otherwise dispose of 
them. 

An execution may be appointed by implication — as if the 
testator say, " I will that A be my executor, if B will not." In 
this case B is appointed by implication. 

If the testator in the will direct, that the legatees shall appoint 
the person who is to execute his testamentary bequests, their 
nominee is the executor. 

A testator may appoint several persons, his executors, contin- 
gently ; as if he appoints his wife executrix ; but if she will not, 
or cannot be executrix, then he appoints his son, executor ; and 
if he will not, or cannot be executor, then he appoints his brother 
executor. In this case, the wife is instituted executrix, in the 
first degree ; the son is substituted, in the second degree ; and 
the brother is substituted in the third degree. 

When a testator appoints an executor, and also appoints 
another, in case of the death of the first — on the death of the 
original executor, the person appointed to succeed, becomes the 
executor. 

The appointment of an executor, may be absolute ; or it may 
be qualified by limitations, as to the time or place wherein, or 
the subject-matter whereon, the office is to be exercised — as if 
the testator appoint A to be his executor, at the expiration of 
five years after his death ; or during five years next after his 
death ; or during the minority of his son. And in these cases, 
if the testator do not appoint a person to act, before the time lim- 
ited for the commencement of the office, on the one hand ; or 
after the period limited for its duration, on the other ; the pro- 
bate court may grant a limited administration, cum testarnento 
annexo. 

When the property of the testator lies in different countries, 
he may appoint executors for each different country. 

A testator may appoint one person to be executor for one 
portion of his estate, and a different person to be executor for 
another part, or for the residue of his estate. But creditors are 
not affected by this division of the office ; and such executors 
may all be sued as one executor. 

It there has been a sole executor, who has acted, his executor 
is the executor of the first testator ; and if there have been sev- 



32 FOREIGN EXECUTOR. 

eral executors, the executor of the last who has acted, becomes 
the executor of the first testator. But the office is not trans- 
mitted to the executor of an executor who has not qualified. 

The person appointed executor, may refuse to accept the 
office. If there be a sole executor appointed, and he renounce ; 
or if there be several executors appointed, and they all re- 
nounce ; and administration be granted ; none of them have a 
right afterwards to be admitted to the executorship. And where 
several executors were appointed, and one only accepted and 
acted, after his death, administration ought not to be granted 
to a different person, before the survivor, who had refused in 
the first instance, now again refuses or declines to act. 

FOREIGN EXECUTOR. 

A foreign executor, or administrator with the will annexed, 
of a testator, who, at the time of his death, had no known resi- 
dence in the slate, and for whom no personal representative has 
been appointed in the slate, may demand and receive a debt 
due to the testator, and maintain an action in his representative 
character ; and he will have all the rights and privileges of one 
duly appointed and qualified in the state, subject to the follow- 
ing restrictions. Before judgment shall be rendered at the suit 
of such foreign executor, or administrator with the will annexed, 
he must produce in the court, a copy of his letters testamentary, 
probate, or letters of administration, duly authenticated accord- 
ing to the laws of the U. States ; and the certificate of the judge 
of probate of some county in the state, that the letters have been 
duly recorded in his county. And he is not to receive any 
money recovered by judgment, or any money otherwise due to 
him in such representative character, until a copy of his letters 
testamentary, probate, or letters of administration shall have 
been recorded in the office of the judge of probate of some 
county in this state ; and he shall have deposited, in the office 
of the judge of probate of the county in which the judgment 
may have been rendered, or in which the debtor may reside, a 
bond with security, for the faithful administration of all money 
and other effects received by him in this state. CI. Dig. 227, 
sec. 31. 



EXECUTOR DE SON TORT. 33 

If such foreig;n executor or admiiiistrator is not authorized to 
sue in this state, the grounds of disabihty should be pleaded in 
abatement. 5 Al. R. 654, Cloud v. Golightly, adinr. 

EXECUTOR DE SON TORT. 

A person who is neither executor nor administrator, makes 
himself executor de son tort, (of his own wrong,) by an improper 
intermeddling with the goods of the deceased. 

But there are many things, which one who is neither execu- 
tor nor administrator, may perform in relation to the estate of 
the deceased, without becoming an executor de son tort ; as if 
he lock up the goods of the deceased, for preservation ; if he 
direct the funeral in a manner suitable to the estate of the de- 
ceased, and defray the expenses with the funds of the deceased ; 
if he make an inventory of the property ; if he feed the cattle; 
if he repair the houses ; or if he provide necessaries for the fam- 
ily ; or any like acts of kindness or humanity. 

A widow may live at her husband's last residence, and take 
care of the estate ; and she will not thereby make herself liable 
as executrix de son tort. 10 Al. R. 197, Ward v. Bevil and 
Wife, exrs. 

When one takes possession of goods left by a deceased per- 
son, under a claim which is colourable, he will not be chargea- 
ble as executor de son tort. 5 Al. R. 31, Denslee, exr, v. Ed- 
wards, use, 6fC. 10 Al. R. 197, Ward v. Bevil and Wife, 
ex'rs. 

Whether the act performed, makes a man executor de son 
tort, is a question of law for the court : the bona fide of the 
transaction presents a question for a jury. lb. 

After letters testamentary, or of administration, have been 
granted, intermeddling with the goods of the deceased will not 
make a man executor de son tort. 

An executor de son tort is liable to an action by the rightful 
executor or administrator ; and he is also liable to be sued by a 
creditor of the deceased, and by a legatee. If there be a lawful 
executor, he may be joined as defendant in the action against 
the executor de so7i tort ; or they may be sued separately. But 
an administrator cannot be joined with the executor de son tort. 



'■0' 



34 ACTS BEFORE PROBATE. PROBATE. 

In an action against him, he is styled simply, executor. 

If he be sued by a creditor, and plead ne ungues executor, 
and issue be joined thereon ; and it be found against him, on 
proof of some act making him executor de son tort, the judg- 
ment will be, that the plaintiff recover the debt and costs, to be 
levied out of the assets of the testator, if the defendant have so 
much ; but if not, then out of the defendant's own goods. 

But it is a good defence, that he has delivered the goods, be- 
fore action brought, to the rightful executor or administrator. 

An executor de son tort, has no right to retain assets, in pay- 
ment of a debt due to himself 

In an action of trespass or trover, by the rightful executor 
or administrator, the executor de son tort cannot plead in bar, 
payment of the debts of the deceased. Such matter may be 
given in evidence, under the general issue, in mitigation of dam- 
ages ; but although the debts proved to have been paid, amount 
to the full value of the goods sought to be recovered, yet the 
plaintiff will be entitled to a verdict for nominal damages, if the 
estate be solvent ; and if the estate be insolvent, he will recover 
at least as much as has been paid on those debts, beyond a legal 
^ro rtt^a distribution. 

Such executor cannot make a valid transfer of the goods of 
the estate. 

ACTS BEFORE PROBATE. 

Before probate, an executor may lawfully do many acts in 
relation to the estate of the deceased. He may take possession 
of the testator's effects ; and for that purpose he may enter, 
peaceably, into the house of the heir. He may commence a 
suit, by causing a writ to be issued ; but he cannot declare, be- 
fore he has obtained letters testamentary. 

PROBATE. 

Wills must be proved in the probate court of the county of 
the mansion-house or residence of the testator. But if he had 
no known place of residence in the state, and land be devised, 
the will must be proved in the probate court of the county, 



PROBATE. 85 

where the land, or some part of it lies. If he had no known 
place of residence in the state, and no land be devised, the will 
must be proved, either in the county in which the testator died, 
or in that in which his estate, or some part thereof, or his cred- 
itors, or some of them, may be. CI. Dig. 303, sec. 33. Ih. 598, 
sec. 10. 

The practice of proving wills in common form, is at variance 
with the statute requiring citation to the parties in interest, when 
a will is to be offered for probate ; and also with the statute per- 
mitting an appeal to the court of chancery, within five years ; 
and it does not exist in Alabama. 

In general, on application for probate, the probate judge must 
issue citation to the widow, or next of kin, to show cause, on the 
day specified in the process, or at the next stated session of the 
probate court, why the instrument offered, should not be estab- 
lished as the will of the deceased, and be recorded. And sub- 
poenas must issue for such witnesses as the applicant may name, 
on the return of the process. CI. Dig. 303, sec. 34. 

The statute is carelessly drawn. There is no reasonable 
doubt, that the citation ought to issue both to the widow, and 
the next of kin ; and that subpoenas ought to issue for the wit- 
nesses desired by parties opposing the will, as well as for those 
desired by the applicant for probate. 

The court, at any stated session, (or on any return-day,) may 
hear and determine on an application for probate, although no 
citations may have been issued or served, on proof of reasonable 
notice thereof, or that the deceased had no widow, or kindred 
resident in the state. 

If there are minor heirs resident in the state, citation for 
them must be served on the persons, under whose care they 
may be ; and then they must be represented by guardians ad 
litem. 4 Al. R. 253, Shields, et al. v. Alston. 

Of a nuncupative will, probate must not be taken, until four- 
teen days after the decease of the testator. No evidence can 
be received, to establish a nuncupative will, after six months 
from the speaking af the words, unless the words, or their sub- 
stance, have been reduced to writing within six days after the 
speaking. CI. Dig. 597, sec. 3, 4. 

Probate is not to be taken of a nuncupative will, until citation 



36 PROBATE. 

has issued to the widow, and other persons principally con- 
cerned, if resident in the state. 

Authenticated copies of wills, which have been proved ac- 
cording to the laws of any other of the United States, or of any 
foreign country, concerning estates in this state, may be ad- 
mitted to probate, in the probate court of the county in which 
the property disposed of by the will, or a part of it, may be ; 
but such will shall be liable to be contested, in the same manner 
as the original might have been. CI. Dig. 598, sec. 12. 

The validity of a will being questioned in the probate court, 
a jury may be summoned and impanneled, to try such issue, or 
to enquire into such facts, as, under the direction of the court, 
shall be submitted to their decision. CI. Dig. 304, sec. 35. 12 
Al. R. 687, Hill V. Barge. 

A will may be in part established, and admitted to record; 
and in part rejected : as when a part of the instrument has been 
inserted fraudulently in the life of the testator, or by forgery 
after his death — in which case, it may be established, with the 
exception of that clause. Or if there be sufficient proof to es- 
tablish a will for the disposal of personal estate ; but it is not 
attested by three witnesses, it may be established with the ex- 
ception of the clauses devising real estate. 

The probate of a will, although not in conformity to law, if 
made before a court having jurisdiction of it, cannot be im- 
peached, except in a direct proceeding to set it aside. 10 Al. R. 
977, HilUard and Wife v. Binford's heirs and adm'rs. 

After probate, the original will must remain in the probate 
office, subject to inspection, except while it may be in the su- 
preme court, by certiorari or otherwise. But after a year from 
probate, the probate court may permit it to be withdrawn, in 
order to be proved in some other state. CI. Dig. 302, sec. 27. 
lb. 598, sec. 13. Ih. 599, sec. 16. 

Any person having a will in his possession, may be compelled 
by the orphan's court, to produce it, in order to probate. CI. 
Dig. 598, sec. 13. 

Within five years after probate of a will, any person inter- 
ested in it, may contest its validity, by bill in chancery ; and 
the court of chancery may direct issues in fact to be tried by 
a jury. In the trial of such cases, the certificate of the oath of 



PROBATE. « 37 

the witnesses, taken on the original hearing for probate, shall be 
admitted as evidence to the jury, to have such weight as they 
may think it deserves. After the expiration of said five years, 
the original probate will be conclusive and binding on all parties; 
saving to infants, married women, persons non compos mentis, 
and persons absent from the state, the like period of five years 
after the removal of their respective disabilities. CI. Dig. 598, 
sec. 15. 

For proof of a will of personal property, two witnesses are 
necessary."' 2 Al. R. 218. Johnson, et ah v. Glascock and 
Wife, et al. 

For proof of a will bequeathing real estate, all the subscri- 
bing witnesses should be examined, if within reach of the pro- 
cess of the court. If one of the subscribing witnesses is dead, 
or reside out of the state, the deficiency may be supplied by 
proof from the other subscribing witnesses, that he signed the 
will at the request, and in the presence, of the testator. And 
the testimony of a non-resident subscribing witness, may be taken 
by deposition. 8 Al. R. 538, Bowling v. Bowling, exr. CI. 
Dig. 598, sec. 11. 

In general, when there is proof that the signature is in the 
hand-writing of the testator, every thing else in support of the 
will, is implied, until the contrary be proved. But when the 
will offered for probate, is in the hand-writing of a legatee, it 
must be proved, that the testator knew its contents. And the 
same proof is required, when the testator is blind, or from any 
other cause, unable to read ; or when there is any other circum- 
stance raising a suspicion that the testator may have been im- 
posed on. 12 Al. R. 687, Hill v. Barge. 

It is not necessary to prove, in support of a will disposing of 
real estate, that the testator actually saw the witnesses subscribe 
their names ; it is sufficient, if it be shown, that, from the rela- 
tive position of the witnesses and the testator, he might have 
seen them sign. Ih. 

The opinion of a witness, that the testator was insane, he 
stating, that he does not know any facts on which his opinion 
rests, is incompetent evidence. 8 Al. R. 538, Bowling v. Bow- 
ling, ex'r. 

According to the ecclesiastical law, which for the most part 

5 



38 PROBATE. 

regulates the proceedings of the orphans' court, the child of a 
legatee is an incompetent witness in support of the will, by rea- 
son of the interest of the parent. 

When a legatee is a subscribing witness, he may be compel- 
led to testify, if the will cannot be otherwise proved ; and the 
devise or bequest to him will be void. But if he would be en- 
titled to a distributive share of the estate, were there np will, 
then so much of said share shall be saved to him, as shall not 
exceed in value, the devise or bequest made to him. CI. Dig. 
597, sec. 8. , ■ , 

If a debt to a subscribing witness be charged by the will, on 
the lands, tenements, or hereditaments of the testator, he will 
nevertheless be competent, in proof of the will. CI. Dig. 598^ 
sec. 9. 

The evidence of a subsciibing witness maybe excepted to, by 
the party who produces him ; and a will may be established, or 
set aside, in opposition to the testimony of the subscribing wit- 
nesses. 

In addition to the evidence of persons who have seen the 
testator write, or who have corresponded with him, persons 
skilled in the examination of hand-writing, are competent to 
testify, as to their opinion of the genuineness of the writing 
offered for probate, by comparing it with other documents ad- 
mitted or proved to be in the hand- writing of the testator. 

If, on the face of the paper offered as a will of personal estate, 
there be ambiguity, not as to the construction of a particular 
part of it; but as to the Ibundation of the instrument itself, or 
any part of it — as whether the testator meant a particular clause 
to be part of the instrument, or it was inserted without his 
knowledge ; whether a codicil was intended to republish a for- 
mer, or a subsequent will ; whether the residuary clause, or any 
other part, was omitted contrary to the intention of the testa- 
tor ; whether the instrument was subscribed in order to authen- 
ticate it, as a memorandum for a will to be made at a future 
time, or to operate as a final disposition — on these, and the like 
questions, parol evidence is admitted, to show the intention of 
the testator. In these cases, there is some absurdity or ambi- 
guity on the face of the will, ascribable to something improperly 
omitted or inserted ; and there must be clear and satisfactory 



EFFECT OF PROBATE. 39 

proof, that the omission or insertion was contrary to the inten- 
tion of the testator. 

EFFECT OF PROBATE. 

The sentence of the probate court, in deciding on the vahdity 
of a will, is conclusive evidence of the matter directly deter- 
mined. While such sentence remains unrepealed, it is not com- 
petent, in any court, to give evidence that another person was 
appointed executor ; or that the testator was insane ; or that 
the will was forged. 

The probate is conclusive of every part of a will admitted to 
record ; and after probate without any reservation, objection 
cannot be made to any particular clause of it, as interlined by 
forgery. 

Although a court of chancery has not jurisdiction to set aside 
a will admitted to probate, except by proceeding in the nature 
of appeal, under the statute ; yet it may charge with a trust, a 
legacy which has been obtained by fraud, as if the drawer of a 
will should fraudulently insert his own name, as legatee, instead 
of the name of the person intended by the testator. 

When the probate has been obtained by fraud on the next of 
kin, a court of equity may hold the fraudulent legatee as a 
trustee for the next of kin, or compel him to consent to a repeal 
of the probate, in the court in which it was granted. 

Although no evidence can be received to impeach the pro- 
bate, when it is the judicial act of a court having jurisdiction ; 
yet, under the plea of ne ungues executor, it may be shown, that 
the particular court granting it, had no jurisdiction, as it regards 
the residence, or the place of the estate, of the deceased. This 
does not falsify — it confesses and avoids the seal of the probate 
court. 

If probate be granted of a will in a foreign language, and in 
the same probate, the will is translated into English, the probate 
does not cover any error in the translation ; and such error may 
be corrected in another court, acting on the will. 



40 REVOCATION. CUSTODY. ESTATE. POWER. 
■ REVOCATION OF PROBATE. 

Probate may be revoked, either on suit by citation, in the 
probate court ; or by bill, in the nature of appeal, in the court 
of chancery. 

CUSTODY OF WILLS. 

Wills ought to be lodged, before probate, in the office of the 
probate court ; and the expenses necessary to getting a will out 
of the hands of any party withholding, ought to fall on that 
party. Original wills, after probate, must be recorded ; and the 
original must remain in the office of the probate court, (except 
as provided by law,) subject to inspection. CI. Dig. 302, sec. 
27. Ih. 598, sec. 13. 

ESTATE OF THE EXECUTOR. 

As the right of an executor to the estate of the testator, is de- 
rived from the will, it vests in him from the moment of the death 
of the testator ; and the letters testamentary, when issued, re- 
late back to that time. 

Several executors are considered as constituting but one 
person. They have a joint and entire interest in the effects of 
the testator, which cannot be divided. On the death of one, the 
whole interest vests in the survivors, or survivor, without any 
new action of the orphans' court. 

All moveable goods vest in the executor, in possession, al- 
though in different and distant places, immediately on the testa- 
tor's death ; but he is not deemed to be in possession of things 
immoveable, as leases for years of lands or houses, before entry. 

As the executor is bound to pay the debts, before he satisfies 
the legacies, the right of the legatee is not perfect without the 
assent of the executor; and until that assent be given, the 
property bequeathed remains vested in the executor. 

POWER OF AN EXECUTOR OF AN EXECUTOR. 

In all cases, except of special trust and authority beyond the 
office of an executor, the executor of an executor has the same 
authority as the first executor. 



FEME COVERT Ex'x. DEBTS PREFERRED. 41 

POWER OF A FEME COVERT EXECUTRIX. 

As a wife cannot take on herself the office of executrix, with- 
out the assent of her husband, so she cannot in the course of 
her executorship, without the concurrence of her husband, do 
an act which may make him Hable. She cannot, by herself, 
release a debt, or assent to a legacy. 

The husband of the executrix may exercise all the powers 
incident to the office. 

DEBTS TO BE PAID IN PREFERENCE TO LEGACIES. 

The whole estate of the testator is liable for the payment of 
his debts. If the executor pay any legacy, or permit a legatee 
to retain a specific legacy, or to take possession of the property 
bequeathed; and the assets remaining prove insufficient to pay 
all the debts ; the executor will be personally liable to creditors, 
to the amount paid to the legatee, or retained by him. 

A difficult question arises, when there is a contingent debt ; 
that is, when there is an outstanding covenant of the testator, 
or bond with a condition which has not been broken ; but which 
is still open, and which is liable to be broken hereafter. No 
decree of a court in favor of a legatee, could protect the exec- 
utor against a liability for a breach which may hereafter occur; 
and the practice seems to be, to require the executor to satisfy 
the legacy, on the legatee's giving him a sufficient bond to in- 
demnify against such liability. 

A creditor, whose claim is not contingent, may, by laches, 
lose his hold on the executor. When there is a suit in chancery 
against an executor, for the administration of the assets, it is the 
practice of the court, so long as there is a residuary fund in 
court, to permit a creditor to come in, and prove his debt, for 
payment out of that fund. If the creditor fail to come in before 
the executor has paid away the residue, under the order of the 
court, he will no longer have a claim on the executor. But, by 
suit, he may compel the legatee to bring back the fund. 

If a creditor come in after some of the legatees have been 
paid in full, under the sanction of the court; and while certain 
funds remain in court, which have been directed to be paid to 
5* 



42 ASSENT TO LEGACIES. 

certain other legatees ; this tardy creditor is not to be paid in 
full, out of the funds of a part of the legatees so remaining in 
court. He is to receive from those funds, a rateable payment, 
bearing the same proportion to the whole of his debt, as the 
legacies given to those legatees, bear to the whole amount of 
the legacies in the will. 



ASSENT TO LEGACIES. 



It is the duty of the executor, to pay the debts of the de- 
ceased ; and he is responsible to creditors to the whole amount 
of the estate, whatever disposition the testator may have sought 
to make in his will. For his protection under this responsibil- 
ity, the title of the legatee cannot be complete, without the 
assent of the executor. The legatee has no right to take pos- 
session of the property bequeathed, without that assent ; even 
though the testator in his will expressly direct that he shall do 
so. 12 Al. R. 532, Upchurch v. Nosworthy. 8 Port. 529, 
MordecaiY. Beal. See the general doctrine. 

But before the assent of the executor, the legatee has, after 
the death of the testator, an inchoate right to the thing be- 
queathed ; which right, on the death of the legatee, is trans- 
missible to his personal representative. 

The assent of the executor is necessary to give effect to a 
clause in the will, discharging a debt due to the testator ; for 
this clause is in the nature of a legacy ; the debt being a part 
of the assets of the testator, and liable for the payment of debts 
due by him. 

If the legatee, without the assent of the executor, obtain pos- 
session of the thing bequeathed, it may be recovered in an ac- 
tion by the executor. But if the executor withhold his assent 
without sufficient cause, he may be compelled to deliver the 
property, by a proceeding in chancery. 

No certain form of words is necessary, to constitute the as- 
sent of the executor ; and it may be either expressed or implied. 
Assent may be implied from indirect expressions, or from some 
acts ; as when a horse is bequeathed, and the executor requests 
the legatee to dispose of it ; or if the executor directs a third 
person to purchase it from the legatee. If the will directs, that 



ASSENT TO LEGACIES. 43 

the rents or interests of the property bequeathed, be apphed to 
the maintenance of the legatee during minority, and the exec- 
utor begin to apply them to this purpose, his assent to the prin- 
cipal bequest will be implied. 

But the responsibility of assent should not be fastened on 
him, by ambiguous expressions which may fall from him. 

If property be bequeathed to A for life, with remainder to B, 
the assent of the executor, given to either legatee, will enure, by 
implication, to the other. And an assent to a lease for years, 
carries, by implication, assent to any condition or contingency 
attached to the lease ; and the same principle extends to other 
cases of like character. 

In certain cases, the assent of the executor may be presumed, 
on the principle that, in the absence of evidence, a man shall 
be presumed to have done, what duty required him to do : as 
when the executor dies after the debts are paid, and before the 
legacies have been satisfied. And the same presumption arises, 
when the legatee has kept possession of the thing bequeathed, 
for a long time, without objection from the executor. 

The assent may be conditional. If it be given on the per- 
formance of a condition precedent, then, on the performance of 
the condition, the assent will be absolute. If the condition be 
such as the executor had no right to impose, as if he should de- 
clare his assent, provided, the legatee shall first perform some 
act for the personal benefit of the executor, the condition will 
be set aside; and the assent will be considered as if it had been 
absolute. If the assent be, on a condition subsequent, requiring 
from the legatee, something beneficial to the executor, the leg- 
atee will not be held to the performance of the condition. 

An executor's assent is valid, when given before probate, if 
he afterwards obtain letters testamentary, but not otherwise. 

When there are several executors, the assent of one of them 
is sufficient ; and when property is bequeathed to one of several 
executors, he may take it, of his own assent. 

When an infant has been appointed executor, the assent of 
the administrator durante minore cetate is necessary and suffi- 
cient. 

The assent of a feme covert executrix is not sufficient, with- 
out the concurrence of her husband. 



44 ASSENT TO LEGACIES. 

It is generally true, that the assent of the executor, when giv- 
en, cannot be retracted ; and that, after such assent, the specific 
legatee has a right to take and keep the thing bequeathed, not- 
withstanding the subsequent dissent of the executor. And after 
the assent, the legatee may maintain an action against the ex- 
ecutor, for the property specifically bequeathed. 

But when the assent has not been consummated, by payment 
in case of a general legacy, or by delivery in case of a specific 
legacy, and the title has not passed from the legatee to a bona 
fide purchaser, and the assent has been given on reasonable 
grounds for believing that the general assets were sufficient for 
the payment of the debts, but they afterwards prove to be insuf- 
ficient, in these circumstances it seems reasonable to permit the 
executor to correct his error, by withdrawing his assent. 

The assent of the executor relates back to the death of the 
testator. As in case of a devise of land, if rent become due after 
the death of the testator, and before the assent of the executorj 
the assent when given, establishes the right of the legatee to 
such rent. 

A subsequent assent of the executor will confirm a previous 
grant of the legacy, by the legatee. 

Assent of the executor is necessary, in order to vest in him- 
self, the title to property bequeathed to him ; and before he gives 
this assent, he ought to be satisfied that this property will not 
be needed for payment of the debts. His assent to his own 
legacy may be either express, or implied. To constitute an im- 
plied assent, it is not sufficient that his act from which assent is 
implied, is equally applicable to his character of legatee, as to 
his character of executor. It must be an act showing that he 
has assented to the legacy, as if he take the rents to his individ- 
ual use, or repair the buildings at his individual expense. If a 
term be bequeathed for life to the executor, and the remainder 
to B, and the executor say, that B, will have the term after 
him, this implies an intention, and consequent assent, to hold his 
life-estate, as legatee. 

But if the executor merely say, that the testator left the prop- 
erty to him, assent to hold as legatee, cannot be impHed from 
these words. 

When an entire term is bequeathed to an executor, his entry 



TIME OF PAYMENT. ,: ' - 45 

will amount to an election to take as legatee. But if only a par- 
tial interest in the property is bequeathed to him, and an estate 
over is bequeathed to another person, something more than his 
entry is necessary to show his assent, this being an act which 
would confirm the legacy of the remainder, when it might be 
wanted for payment of the debts. But there may be attendant 
circumstances showing that his entry, when only a partial inter- 
est in a term was bequeathed to him, amounted to an election 
to hold as legatee, as when he explains his act, by stating that 
he holds as devisee for life. 

If one of several executors be a legatee, his single assent to 
his own legacy, will be sufficient ; and if an undivided piece of 
property be bequeathed to several executors, the assent of any 
one of them to his own proportion will confirm the whole 
legacy. 

If an executor renounce, his assent to a legacy will be inope- 
rative. . , , 

TIME OF PAYMENT OF LEGACIES. 

An executor may be compelled, when the assets are sufficient 
to pay a general, or to deliver a specific legacy, after eighteen 
months from the grant of letters testamentary. CI. Dig. 197, 
sec. 23, 24. 

The statute is general in its terms, but it cannot intend, that 
the executor shall satisfy the legacies, when the assets bequeath- 
ed are needed for the payment of debts within his knowledge. 

The time is allowed for the convenience and safety of the 
executor, and he may satisfy the legacies before the expiration 
of eighteen months, if he is assured that they will not be needed 
for the payment of debts. 

When a legacy is given generally, subject to a limitation over 
to another person, on the happening of a future, contingent 
event, the first legatee may claim his legacy, after the lapse of 
the eighteen months ; and he will not be required to give secu- 
rity to refund on the happening of the contingency. 

If a fund bearing interest is bequeathed, the interest accruing 
after the death of the testator, will be due to the legatee, although 
not payable to him until after the expiration of the eighteen 



46 TO WHOM LEGACIES ARE TO BE PAID. INTEREST ON. 

months. But if a legacy of money is given generally, no inter- 
est accrues on it, until it is payable, after the expiration of 
eighteen months. -^j 

It appears to be the doctrine of the later decisions, that where 
there is a bequest of the residue of personal estate, for life, with 
remainder over, the legatee taking the residue for life, is entitled 
to the proceeds, from the death of the testator. 

TO WHOM LEGACIES ARE TO BE PAID. 

A legacy must be paid to some person legally authorized to 
receive it. 

If a legacy be to a minor, it can lawfully be paid, during the 
minority of the legatee, only to his trustee or guardian. A pay- 
ment to the father, as natural guardian, will not be sustained ; 
nor to the minor, during his minority. But if the will direct, 
that the legacy be paid to the father, for the minor, the father is 
thereby made the trustee, and a payment to him will be proper. 

A legacy to a married woman is to be paid to her husband. 
But the executor may refuse to pay it to the husband, unless he 
will settle a reasonable part of it on the wife, and her children. 
And a court of equity will entertain a bill in favor of the wife, 
against the executor and her husband, for a settlement to her 
separate use, out of a legacy bequeathed to her. If, however, 
the wife be living in adultery, apart from her husband, a court 
of equity will not make this provision for her ; nor will it then 
order the legacy to be paid to the husband ; but it will secure 
the property for her children 

When a bequest is made to the separate use of a married wo- 
man, the husband has no right to it, and the wife may sue for it, 
by her next friend. ; 

If a legacy be to A, to be divided between himself and his 
family, a payment to A, will be proper. 

INTEREST ON LEGACIES. 

Specific legacies are considered as set apart from the general 
estate, and appropriated at the time of the testator's death. 
Whatever accrues on them, and nothing more, belongs to the 



INTEREST ON LEGACIES. 47 

legatee. And in relation to this accrual, the assent of the ex- 
ecutor, when given, relates back to the time of the death of the 
testator. 

General legacies carry interest, which is to be computed from 
the time at which they become due and payable. 

When no time is appointed in the will, for payment of a lega- 
cy, it is in general payable at the end of eighteen months after 
the grant of letters testamentary. The law allows this time to 
the executor, that he may have an opportunity of ascertaining 
the condition of the estate, and of being prepared for its settle- 
ment. Interest, in general, accrues from that time; and it will 
not be payable from an earlier day, even though the will may 
have directed that the legacy be paid as soon as possible. From 
that time, the legatee is entitled to interest, whenever the assets 
furnish a fund from which assets may be made. 

When the time is designated in a will, for the payment of a 
legacy, the general rule is, that the legacy will not bear interest 
before the arrival of that time. But the rule is subject to the 
following qualification. If the testator be parent, or in loco 
parentis, and the legatee be a minor, interest on the legacy will 
be allowed from the death of the testator, for the maintenance 
of the minor, provided, no other provision has been made for 
that purpose. 

When the will directs that the legacy shall be paid at a future, 
designated time, as, when the legatee shall arrive at the age of 
twenty-one years, and that it be then paid with interest, the in- 
terest must be computed from the end of the eighteen months. 

In addition to the general rules of law, our statute has made 
the following provision. When any executor shall apply any of 
the funds of the estate to his own private use, he shall pay inter- 
est for tlie same. And in making his returns to the probate 
court, he must state the sum so used, and the time during which 
it was used ; or he must deny, expressly, under oath, that he 
has used any of the funds of the testator. And if any legatee 
having an interest, shall controvert the statement so made, the 
question shall be decided by the court, or by a jury impanneled 
for the purpose, if either party desire it. CI. Big. 198, sec. 28. 
If the d«3ision be against the executor, he will be personally 
bound to pay interest, in accordance with the judgment of the 



48 INCREASE OR DIMINUTION. ELECTION. 

court, or the verdict of the jury. And the interest thus charged 
against the executor, is not to be paid out of the assets of the 
estate. 

Interest on legacies is, in general, to be computed on the prin- 
cipal only, and not on the interest accrued. But the court will 
allow compound interest, under circumstances of gross neglect, 
or breach of trust, as where there is an express direction in the 
will, that the executor lay out the fund, to accumulate ; and he 
neglect to do so. 

In the settlement of the accounts of an executor, interest is 
to be computed on the debits, and on the credits. 

INCREASE OR DIMINUTION OF SPECIFIC LEGACIES. 

A question may arise, whether the legatee of a specific lega- 
cy is entitled to such increase as may happen to the property 
bequeathed, between the date of the will, and the death of the 
testator. The general rule is, that in order to limit the bequest 
to the property as it stood at the date of the will, the language 
of the testator must be clear in expressing this intention. If the 
language used be general, as " all the testator's goods in a par- 
ticular house," it will include all the goods of the testator, which 
may be in that house at his death ; although they may not have 
been there at the date of the will. And the same rule will ap- 
ply, if goods there at the date of the will, were not there at the 
death of the testator. 

ELECTION TO TAKE THE LEGACY. 

It is a general principle of equity, that a party who accepts a 
benefit under any instrument, must assent to the whole of it, and 
give effect to its provisions ; and that he must renounce every 
right inconsistent with it. On this principle, if a testator de- 
vises to another person, property which belongs to A, and also 
makes a legacy to A, he will not be permitted, at the same 
time to hold his own property which has been bequeathed to 
another, and to take the property which has been bequeathed to 
himself. He is driven to his election, and must choose whether 
he will relinquish his own property, and accept thfe devise, or 
will retain his own property, and renounce the devise. And 



REFUNDING OF LEGACIES. 49 

in giving effect to this principle, it is not material to inquire, 
whether the testator was aware that the property so bequeathed 
to the other legatee, was not the property of the testator. 

But this 'rule does not preclude a party claiming a legacy 
under a will, from maintaining a derivative interest, to which 
he is entitled at law, under a legal estate in opposition to the 
will. A man may be tenant by the curtesy of an estate held by 
his wife in opposition to the will, and at the same time claim a 
legacy under the will. 

This doctrine does not apply to creditors taking the benefit of 
one clause in the will, appropriating certain property to the pay- 
ment of debts, and at the same time subjecting other property, 
disposed of in other clauses of the will. Nor does it apply to 
the heir, claiming a legacy of personal property, under the will, 
and at the same time objecting to a bequest of real estate, in the 
same will, on the ground that the will is not so executed as to 
convey real estate. 

If a testator in his will make provision for his widow, she can- 
not have both the legacy and her dower, unless it appear plain- 
ly in the will, that the testator intended the legacy to be in addi- 
tion to her dower. CI. Dig. 172, sec. 1. 

At any term of the orphan's court, (having jurisdiction of the 
will,) or of the circuit or county court, of the county in which 
she resides, a widow dissatisfied with the provision made for 
her in the will of her husband, may, within a year after probate 
make her election to take her dower, relinquishing her legacy. 
Her dissent from the will must be entered on the minutes of the 
court ; and she must then have her dower, as provided by law. 
CI. Dig. 172, sec. 183. lb. 300, sec. 20. 

If the widow do not dissent from the will, in the manner pre- 
scribed by law, she will be considered as having made her elec- 
tion to take the legacy, and to relinquish her dower. 

REFUNDING OF LEGACIES. 

The executor is not bound to pay a legacy, until the legatee 

has given bond with security, to refund a due proportion for 

any debts or demands which may afterwards appear against the 

estate of the testator, and the costs attendant on their recovery. 

6 ' 



60 RESIDUARY LEGATEE. 

Independently of the statute, the legatee is under a legal ob- 
ligation to refund proportionably, whenever, after payment of 
his legacy, the executor is compelled, by legal proceedings, to 
pay a demand against the estate, and there is a deficiency. If 
the assets were not originally sufficient to pay all the legacies, 
and one of the legatees has obtained payment in full, those whose 
legacies have not been paid, may compel the form.er to refund, 
rateably, if the executor and his securities are insolvent. 

If a legacy has been erroneously paid to a legatee who has no 
further property in the estate, and he be compelled to refund, he 
will not be liable for interest on the money erroneously paid to 
him. But if such legatee be entitled to another fund in the 
estate, bearing interest, the court will do justice by retaining 
interest on the money improperly paid to him, out of what is 
due to him. 

RESIDUARY LEGATEE, 

When the executor has paid all the debts, and all the legacies 
heretofore mentioned, he must then pay the surplus, or residue, 
to the residuary legatee, if there be such an appointment in the 
will. And if the residuary legatee die before the payment of 
the debts, and before the amount of the surplus is ascertained, 
the right to the residue will devolve on his executor or adminis- 
trator. 

The testator may, in his will, define or limit what he intends 
for the residuary legatee, and his intention, when ascertained, 
is the law of the will. 

If the residuary legatee is nominated in general terms, he is 
entitled in that character, to whatever personal estate may fall 
into the residue after the making of the will, whether by lapse^ 
invalid disposition, or any other accident, or by acquisition sub- 
sequent to the making of the will. But he t^kes no real estate 
beyond what was designed for him when the will was made. 

When the residuary estate has been bequeathed to several in 
joint-tenancy, if one of them die in the life-time of the testator^ 
his right will survive to the others. But if the residue be given 
to several, as tenants in common, and one of them die before 
the testator, the share to which he would have been entitled, 
will not devolve on the survivors, but will lapse. 



ADMINISTRATION. 51 

The residue does not, in any case, belong to the executor, 
unless it be so expressly ordered in the will. All estate, real 
and personal, not disposed of by the will, must be administered 
and distributed, as the estate of a person dying intestate. CI. 
Dig. 597, sec. 7. 



PART II. 



ADMINISTRATION. 

When a person dies intestate, authority to grant administra- 
tion on his estate, is vested in the probate court of the county 
in which the intestate, at the time of his death, had a mansion- 
house, or known place of residence. If he had none such, au- 
thority to grant the administration is vested in the probate court 
of the county in which he died, or of that in which his estate, or 
the greater part thereof, or any part of his personal estate, or of 
his debtors, may be. CI. Dig. 301, sec. 22. lb. 303, sec. 33. 

Administration in chief should not be granted until fourteen 
days after the death of the intestate, unless for special cause 
the court should think proper to grant it sooner. 

The appointment of a guardian or administrator may not be 
collaterally impeached. 11 Al. R. 461, Speight v. Knight. 

Administration is to be granted to the widow, or the next of 
kin, or some of them. If they refuse, it is then to be granted to 
one or more of the principal creditors of the deceased. If they 
also refuse, administration may be granted to such other (trust- 
worthy) person as will accept. CI. Dig. 220, sec. 1. 

On application for administration, the judge of probate of the 
proper county, must issue citation to the widow, or (and) next 
of kin of the deceased, to appear at a term of the court therein 
specified, to contest such application, and subpoenas must issue 
for such witnesses as the applicant, (or any of the parties con- 
testing the application,) may direct; and the application must 



52 ADMINISTRATION. 

then be heard and determined on. And on proof of reasonable 
notice, or that there is no widow or kindred in the state, the 
court may, without citation, hear and determine on such appU- 
cation, at any of its sessions. CI. Dig. 303, see. 34. 

Cinder ordinary circumstances, in granting administration, 
the court prefers the widow to the next of kin, but there may be 
considerations to induce it to prefer some of the next of kin. 

In determining who are the next of kin, the rule is observed? 
which has been established for the descent of estates. A child 
is in the first degree, a brother or sister is in the second, the 
father is in the third, the mother is in the fourth, and then fol- 
low the other next of kin, computing according to the rules of 
the civil law. But the supreme court has decided, that the 
father should be preferred to the brother or sister. 1 St. ^ 
Port. 102. Brown v. Hay Sf Germany. 

On the death of a party who would have been entitled, the 
right of administration descends, according to the rule of repre- 
sentation in descents. 

There is no distinction between the whole-blood and the half- 
blood, except that kindred of the whole-blood are preferred to 
kindred of the half-blood in the same degree. CI. Dig. 168, 
sec. 2. 

The supreme court has decided that children of a deceased 
brother of the whole-blood, are to be preferred to a brother of 
the half-blood. 3 St. <^ Port. 29, Hitchcock v. Smith. Quere. 

If there are several of the kindred in the same degree, the 
court may in its discretion, select from them the one whom it 
may deem the best qualified to take care of the estate ; or it 
will choose the one to whom a majority of the distributees are 
desirous of entrusting the estate. And it prefers a sole to a 
joint administration. 

Under the statute, the right to administer is in those who are 
next of kin at the time of the death of the intestate. When 
one of the next of kin has been appointed administrator, other 
kindred in the same degree have not, during the life of him ap- 
pointed, a right to the same grant. 

When a creditor has been duly appointed administrator, 
during his life the grant will not be revoked in favor of the next 
of kin, unless for causes pointed out by the statute. 



ADMINISTRATION. 53 

SHERIFF AND CORONER. ADMINISTRATOR. 

When no one shall have been admitted and qualified as ex- 
ecutor or administrator, within three months after the death, or 
when the office of executor or administrator shall have become 
vacant by death, resignation or removal, the probate court may 
commit the administration to the sheriff, or to the coroner of 
the county. The sheriff or coroner so appointed, and his secu- 
rities, will be liable, on his official bond, for any defalcation as 
administrator; and no additional bond, or oath of office will be 
required of him, unless the judge shall otherwise order. And 
on this bond, suit may be instituted, as on the bonds of execu- 
tors and administrators. The administration attaches to the 
office, and not to the person of the sheriff or coroner, and will 
pass to the succeeding sherifT or coroner. CI. Dig. 222, sec. 10. 

GENERAL ADMINISTRATOR. 

It is! the duty of the judge of probate to appoint a suitable 
person in his county, to take charge of the estates of deceased 
persons, in those cases where no other persons will administer. 
The person so appointed must discharge all the duties of admin- 
istrator, and may be required to renew his bond from time to 
time, and will be subject to removal for neglect of duty, or mal- 
practice. CI. Dig. 228, sec. 36. 

The judge of probate may, in his discretion, require the per- 
son applying that administration be cast on the sheriff, coroner, 
or general administrator, to give bonds with security, to such 
officer, to indemnify him against costs. Acts of 184,7, p. 9. 

ADMINISTRATOR AD COLLIGENDUM. 

The judge of probate may appoint an administrator ad colli- 
gendum, for an estate requiring it, whose powers and duties are 
limited to collecting and taking care of the personal estate. For 
this purpose, he may institute actions at law ; and suits com- 
menced by him will not abate on the appointment of an admin- 
istrator in chief, but may progress in the name of the latter. 
CI. Dig. 222, sec. 8. 
6* 



M . ADMINISTRATIOjV, 

An administrator ad col. may be removed at any time by the 
appointment of an administrator in chief. 12 Al. R. 836, Flora 
V. Menice. 

SPECIAL LIMITED ADMINISTRATOR. 

During any contest about the vah'dity of a will, or during the 
infancy, or the absence of the executor or administrator, or in 
any other emergency not provided for, the judge of probate may 
appoint an administrator, with such limited authority as the 
case may require. And when the necessity of the case may 
require it, such administration may be granted, or revoked? 
without delay. CI Dig. .22^, sec. 10. 

There is a variety of circumstances which require an admin- 
istration, limited as to time, or as to the part of the assets to be 
administered, as when it is known that there is a will in a for- 
eign country, and time is required to procure it ; when a will is 
known to have been in existence after the death of the testator, 
but it is lost or secreted. In these instances, the applicant can- 
not swear that the deceased died intestate, and a special admin- 
istration will be granted for the purpose of preserving the estate 
until the will shall be exhibited, or its contents established. 

If the party entitled to administration shall not be able to give 
a satisfactory bond for the administration of the whole estate, 
the court may, in its discretion, grant him administration of 
some specified part of the estate, requiring from him a bond in 
double the value of such part. Sometimes an administration 
may be needed for carrying on a particular suit, and the grant 
may be limited accordingly. 

ADMINISTRATION CETERORUM. 

In instances like the two foregoing, administration ceterorum, 
(of the residue of the estate,) may be granted to a different 
party. 

ADMINISTRATOR DURANTE MINORE .ETATE. 

If a person appointed sole executor, or he to whom in case of 
intestacy the right of administration appertains, be within the 



: ADMINISTRATION. 55 

age of seventeen years in the one case, or of twenty-one years 
in the other case, the probate court may appoint an administra- 
tor durante minore cEtate. It is the general practice of the 
court to grant this administration to the guardian of the minor, 
or to the husband of a minor, feme covert. In the case of an 
infant executor, this administration terminates, v^hen he be- 
comes seventeen years of age ; but in the case of an infant en- 
titled to the administration, it continues until he arrives at 
twenty-one years of age. If the administration be during the 
minority of several infants, it terminates when the eldest of 
them becomes of the lawful age. 

If an administrator durante minore cetate bring an action, he 
must aver in his declaration, that the infant is still under age. 
But in an action against such administrator, this averment is 
unnecessary. 

If a suit in chancery be instituted by this administrator, and 
during its pendency the minor become of age, it may be contin- 
ued in the name of the latter, by a supplemental bill. But if an 
action at law be commenced by him, and the minor arrive at 
mature age during its pendency, according to the practice of 
the English courts, such action would abate. But this practice 
is contrary to the spirit of the laws of Alabama, and to the anal- 
ogies which they furnish. The proper executor or administra- 
tor would be made a party, and the suit would progress in his 
name. 

After the minor becomes of age, the administrator durante 
minore cetate is responsible to him, but after the maturity of the 
minor, such administrator is not in general responsible to the 
creditors of the testator or intestate. If however he has not ac- 
counted to the administrator in chief, but has fraudulently, and 
by collusion, detained a part of the assets, a creditor, by a bill 
charging these facts, may hold him responsible in chancery. 

ADMINISTRATOR PENDENTE LITE, 

If there be a contest as to the validity of a wall, or the right 
to administration, the court may appoint a person presumed to 
be indifferent between the contending parties, to hold the office 
during the litigation. 



56 ADMINISTRATION. 

An administrator pendente lite may institute suits for the re- 
covery of debts due to the estate, and of property belonging to 
it. But his authority is Hmited to collecting and preserving 
the assets. At the termination of the litigation on the validity 
of the will, or the right to administration, he must deliver all 
that he held under the appointment, to the person whom the 
court shall declare to be entitled. 

ADMINISTRATOR DE BONIS NON. 

On the death of a sole, or of a surviving administrator, the 
probate court appoints an administrator for that part of the 
estate which remains unadministered. The statutes regulating 
the grant of administration, apply equally to original administra- 
tions, and to administrations de bonis non. 

If any executor or administrator, residing out of the state at 
the time of taking the trust, or afterwards removing out of the 
state, shall refuse or neglect, after due notice from the probate 
court, to render his account, and to make settlement of the 
estate in that court, or if any executor or administrator shall be- 
come insane, or shall become incapable, or evidently unsuitable 
to discharge the trust reposed in him, that court may grant let- 
ters of administration with the will annexed, or general letters 
of administration, to the person next entitled to administer under 
the statute. In either case, it is an administration de bonis non, 
and the powers and duties of such administrator de bonis non 
are the same as if the original executor or administrator were 
dead, and he is entitled to all monies due to his predecessor, in 
his representative character. CI. Dig. 222, sec. 6. lb. 227, 

sec. 30. 

When the original debt has been altered by the predecessor, 
if he might have maintained an action on it as altered, in his 
representative character, the right to such action devolves on 
the administrator de bonis non. Where a bill of exchange is 
indorsed generally, and delivered to the administrator, for a debt 
due to the intestate, and the administrator dies, or resigns, or is 
removed before the maturity of the bill, the administrator de 
bonis non may maintain an action on it. 

When there have been several administrators, on the death 



ADMINISTRATION. 57 

of any of them, the administration survives to the others. If 
there be but one survivor, he is the sole administrator. In these 
cases, there can be no administration de bonis non. 

The person who would have been entitled to original admin- 
istration, has the right to the administration de bonis non. 

When those are dead who were next of kin at the time of the 
death of the intestate, the court has authority independently of 
the statute, to appoint an administrator selected on its discre- 
tion, and according to its own rules. And it will generally 
prefer him who has the greatest interest in the estate. 

When a suit has been commenced by or against an executor 
or administrator, it may be prosecuted by or against the admin- 
istrator de bonis non, who may be the successor, and the admin- 
istrator de bonis non may at any time, on motion, be made 
party to the suit. And when any executor or administrator 
shall be displaced, all money due to him in his representative 
character, shall be paid to the administrator de bonis non, who 
may have succeeded. CL Dig. 227, sec. 30. 

An administrator de bonis non may maintain an action against 
one who has been removed from the administration, for money 
received after, on a judgment rendered before the removal. 7 
Al R. 478, Salter v. Cain. 

An administrator de bonis non, cannot maintain an action 
against a former administrator, or his representative, for money 
received by the former, in the course of administration, and not 
paid over. 2 Port. 550, Chamberlain adrar. v. Bates, admr. 

ADMINISTRATOR CUM TESTAMENTO ANNEXO. 

If the-testat-or appointed in any will, renounce the executor- 
ship, or refuse or neglect, for the space of forty days after the 
death of the testator, to exhibit his will for probate, the probate 
court may grant administration with the will annexed, to such 
person as would be entitled in case of intestacy, under the stat- 
ute regulating the grant of administration. CI. Dig. 220, sec. 1. 

When the person appointed executor, dies before the testa- 
tor, or before the will has been proved, or before he has been 
qualified, or when, from any cause, he is incapable of acting, 
or when, after having qualified as executor, he dies, or resigns. 



58 ADMINISTRATION. 

or is removed before he has administered all the estate, the pro- 
bate court appoints an administrator with the will annexed, and 
it is his duty to carry the will into eftect, and to perform all the 
duties of executor. 

In these cases, if there is a residuary legatee, it is the general 
practice of the court to appoint him administrator cum testa- 
mento annexo. This appointment is not within the statute reg- 
ulating the grant of administration, and it is the inclination of 
/ the court, that the right of administration should follow the 
// right of property. On the death of the residuary legatee, his 
/ representative has the same claim to administration cum testa- 
mento annexo, but the claim is not, in either case, an absolute 
right, and cannot be enforced by mandamus. 

When a sole executor, or a surviving executor dies intestate 
after having qualified, no administration on the estate of his 
testator is transmitted to his administrator, but an administra- 
tion de bonis non, cum testamento annexo, is granted ; that is, 
an administration in obedience to the will, on the estate of the 
testator, so far as it has been left unadministered by the execu- 
tor. 

If several executors have been appointed in the will, and one 
alone qualifies and acts ; on his death, the others who had re- 
nounced, may assume the executorship; but if they still refuse, 
administration, de bonis non, cum testamento annexo, is granted. 

The two last cases are not within the statute regulating pri- 
ority in the right to administer, and the court generally grants 
such administration to the person having the greatest interest in 
the estate. 

WHEN NEXT OF KIN AND INTESTATE ARE FOREIGNERS. 

It may be inferred from the statute, that if the person who, on 
the rule of kindred, would be entitled to administration, reside 
out of the state, the court may grant administration to another 
person, without notice to such non-resident. 

In case of a foreigner dying intestate, who had only a tempo- 
rary residence in the state, administration should be granted to 
the person entitled to the effects of the deceased, according to 
the laws of his country. 



ADMINISTRATION. 59 



CREDITOR, ADMINISTRATOR. 



If the widow and all the next of kin refuse, the administration 
may be granted to a principal creditor, or creditors of the de- 
ceased. CI. Dig. 220, sec. 1. 

On general principles it is best that the grant be made to a 
single creditor. 

When a creditor has been duly appointed administrator, the \ 
administration will not be taken from him to be granted to the ^ ' 
next of kin. 

FEME COVERT, ADMINISTRATRIX. 

Coverture is not a disqualification for administration. When 
the wife is entitled, and the grant is made to her, the husband 
becomes joint-administrator, and the wife cannot control the 
assets, or the acts of her husband in disposing of them, and cita- 
tion to him alone is sufficient. 5 Port. 64, Pistole v. Street, 
admr. 6 Port. 184, Williamson, et al. v. Hill. 16 Al R.817, 
Kavanaugh and wife v. McGehee and Armstrong. 

TIME WHEN ADMINISTRATION COMMENCES. 

By a decision of the supreme court, in the case of Eslava v. 
Elliott, admr., the administration commences with the order 
granting it ; and in order to conform to this decision, without 
giving authority to any one to act, unless under due responsibil- 
ity, the judge ought to delay to make an entry of the order 
granting administration, until the securities have been a))proved 
by him, and the bond has been executed, and the oath has been 
sworn. 

THE ESTATE VESTED IN THE ADMINISTRATOR. 

An administrator derives his estate wholly from the probate 
court, and the property of the deceased vests in him only from 
the time of the grant of administration. 

All movable property vests in the administrator in possession, 
although in different and distant places, immediately on his 
being qualified, but he is not deemed to be in possession of 



60 ADMINISTRATION. 

things immovable, as leases for years of lands or houses, before 
entry. 

An administrator duly appointed by the proper court, has 
control of the property throughout the state. CI. Dig. 301, 
sec. 22. 

But for certain purposes, the letters of administration relate 
back to the time of the death of the intestate. An administra- 
tor may maintain an action of trespass, or of trover, for the 
goods of the intestate, taken before the grant of administration. 
Leasehold property of the intestate, by relation, vests in the ad- 
ministrator, so as to enable him to institute actions in respect 
of that property, for all matters affecting it, and for rents accru- 
ed subsequent to the decease of the intestate. But the grant 
will not relate back so as to divest any right legally vested in 
another, between the death of the intestate and the grant. 

ESTATE OF THE ADMINISTRATOR IN THE REAL ESTATE OF THE 

INTESTATE. 

If the personal estate be insufficient for payment of the debts 
of the intestate, it is the duty of the administrator to sell the real 
estate for that purpose, under the authority of the orphan's 
court. And the same duty devolves on him if the real estate 
cannot be equally, fairly and beneficially divided among the 
heirs. 

The administrator may rent the real estate, at public outcry, 
until final settlement. 

Leases, and terms of lands, tenements, and hereditaments for 
life, are real estate. Other interests in such property, for an 
indefinite term, are real estate, as if one grant an estate to a 
woman, so long as she shall continue sole, or during her widow- 
hood, or to a woman and man during their coverture, this is 
real estate. 

ESTATE OF THE ADMINISTRATOR IN THE PERSONAL ESTATE. 

All goods and chattels, real and personal, vest in the admin- 
istrator. A term in lands, tenements, or hereditaments, for any 
definite time, measured by years, months, or days, even though 
it be for ten thousand years, is a chattel, and vests in the admin- 



ADMINISTRATION. (81 

istrator. And this is equally true of an equitable interest, and 
the legal right. 

RIGHT OF THE ADMINISTRATOR TO CHATTELS REAL, WITH RELA- 
TION TO HUSBAND AND WIFE. 

Before the act of 1837, the law gave to the husband a quali- 
fied interest in the chattels real of the wife. If he dispose of 
them, by a complete act during his life, her right by survivor- 
ship will be defeated ; but he cannot dispose of them by will. 

If the husband and wife be ejected from a term of the wife, 
and he recover it in an ejectment in his own name, the term 
will become his, by the recovery. 

If the wife at the time of her marriage were a lessee for years, 
and her husband purchases the land, or takes a lease of it, this 
will be a surrender of the wife's term. In this and the prece- 
ding case, on the death of the husband, the term will pass to his 
administrator. 

If the husband have possession, during coverture, of the chat- 
tels real of the wife, and he survive her, they will be his by the 
marital right, without administration on the estate of his wife. 
On his death they will pass to his administrator. 

But the chattel real of the wife, not reduced to possession by 
the husband, during coverture, on the death of the wife, pass to 
her administrator. 

ESTATE OF THE ADMINISTRATOR IN THE CHATTELS PERSONAL. 

Chattels personal are divided into animate, vegetable, and in- 
animate. 

Whenever animals are held as property, on the death of the 
owner, intestate, they pass to his administrator. 

Trees, and their fruit, when not severed, are considered as 
appurtenant to the soil. When the owner of the land dies, they 
do not pass to his administrator ; they descend to the heir. 

This is true of oranges, apples, and other fruits, hanging on 
the trees at the time of the death, and of whatever constitutes a 
part of the natural and permanent profit of the earth. 

When the occupier of land, whether the owner of the inher- 

7 



62 ADMINISTRATION. 

itance, or of an estate terminating with his hfe, has planted 
grain, cotton, or any thing else, with the intention of raising a 
crop, and he dies before harvest, the crop (emblements) passes 
to the administrator. This rule extends to every thing produ- 
ced by labor and tillage, yielding an annual profit, and to nurse- 
ries ot trees and shrubs planted for sale. 

If the husband sows the land, and dies before harvest, and the 
heir assigns the land sown, to the widow for her dower, she 
shall have the crop, by especial privilege, as dower. If tenant 
in dower sows the land, and then marries, and her husband dies 
before harvest, the crop will not vest in the husband's adminis- 
trator. But it would be otherwise, if the land had been sown 
by this last husband of the dowress. 

When the administrator has a right to the crop or emblements, 
the law gives him free entry, egress, and regress, to cultivate, 
gather, and carry away the crop. 

The personal chattels inanimate, of the intestate, vest in the 
administrator. But there are three exceptions, in which the 
rigl t of the executor or administrator to the personal chattels 
inanimate of the testator or intestate, is barred to some extent, 
in favor of certain claimants, heir- looms, fixtures, and parapher- 
nalia. 

An heir-loom is, in general, a piece of household property, 
v/hich, by custom, has descended with the house, to the heir. It 
cannot be disposed of by will, but may be applied to the pay- 
ment of debts of the deceased, when the other personal property 
is not sufficient. 

The sword of an ancestor, miOnoments, and ensigns of honor, 
set up in memory of those who are deceased, are heir-looms. 

Whatever in law is considered as 2i fixture, is made parcel of 
the freehold, and does not pass to the administrator, but descends 
to the heir. 

The paraphernalia oi" the wife consist of the apparel and 
ornaments suitable to her station in society, whether worn 
usually by the wife, or only on public occasions. What is to be 
so considered, is a question to be decided by the court. The 
husband may sell them, or give them away in his life-time, but 
he cannot dispose of them by will, and they do not pass to his 



ADMINISTRATION. 63 

administrator, unless this becomes necessary for the payment of 
debts, on a deficiency of assets. 

BONDS. 

Before the grant of letters testamentary, or of administration, 
every executor and administrator must enter into bond, with at 
least two sufficient securities, to be approved by the judge oT 
probate, payable to him and his successors in office, in an 
amount at least double the estimated value of the property of 
the estate, including its land, well and truly to perform the du- 
ties required of him by law, as such executor or administrator. 
Bond is not in general required of the executor, when the testa- 
tor has, in his will, directed that it shall not be required. But 
when, after grant of letters testamentary, any creditor, legatee, 
distributee, or heir, shall make affidavit setting forth the amount 
of his claim, and that he believes it to be endangered by such 
grant, if the court shall believe that the estate will probably be 
wasted, it may require the executor to give bond with security. 
CI. Dig. 221, sec. 3. CI Dig. 229, 44. Act of 1847, p. 106. 
CI. Dig. 301, 25. 

Executors and administrators authorized to hold estates to- 
gether, must enter into bond, with sufficient security, for the 
faithful performance of the duties prescribed to them by law. 
CI. Dig. 198, sec. 33. 

Before giving bond, (and taking the oath prescribed,) an ex- 
ecutor has no authority, except to collect, and take care of the 
estate. 3 St. R. 489, Cleveland et al. exrs. v. Chandler. 

An executor or administrator authorized by the court to sell 
real estate, before he receives the order of sale from the clerk's 
office, must enter into bond, with sufficient securities, to conduct 
the sale according to law, and to account for the proceeds of 
the sale, and dispose of them agreeably to law. The amount of 
the bond to be fixed, and the securities to be approved by the 
judge of probate. CI. Dig. 225, sec. 23. 

Foreign executors, before receiving money in this state, must 
enter into bond, in a sum to be determined by the judge of pro- 
bate, and with securities to be approved by him, to be deposited 
in the office of the judge of probate of the county in w^hich he 



64 ADMINISTRATION. 

may obtain a judgment, or in which the debtor of the estate 
may reside, faithfully to administer all money, and other effects 
received by him in such representative character, in this state. 
Cl.Dig. 221, sec. SI. 

The judge of probate may require further security to be 
given by executors and administrators, when it shall appear 
that letters have been granted to them on insufficient security, 
or that their security has subsequently become insufficient, or 
on complaint of any of their securities, or when there shall be 
sufficient ground for believing that the executor or administra- 
tor is about to misapply or embezzle the property of the estate, 
or to remove it from the state, or on proof of gross neglect in 
his duties. CI Dig. 221, sec. 4, 5. 

OATHS. 

Before the issuing of letters testamentary^ or of administra- 
tion with the will annexed, the executor or administrator must 
take an oath before the judge of probate, to the purport that 
the will ordered to probate, is the last will of the deceased, so far 
as he knows or believes, and^that he will execute it according 
to law, and the directions thereof, and that he will return a true 
inventory, and true account of sales. CI Dig. 220, sec. 20. 

Before the issuing of letters of administration, the administra- 
tor must take an oath before the judge of probate, that the de- 
ceased died without a will, so far as he knows or believes, and 
that he will faithfully administer the estate, and return a correct 
inventory and account of sales, and of his administration. CI. 
Dig. 221, sec. 2. 

When in the opinion of the judge, the circumstances of the 
case require a modification of the oath, it shall be administered 
in such form as he may consider to be proper. lb. 



PART III. 



There are many points on which the law in relation to the 
two officers of executor and administrator is nearly, if not en- 
tirely the same. In relation to these points, the two offices will 
be considered together. 

REVOCATION OF PROBATE, OR OF ADMINISTRATION. 

Probate and grant of administration may be revoked in two 
ways : 1st, on suit by citation, in the probate court ; 2d, by ap- 
peal to the court of chancery. 

Administration may be revoked in the probate court when it 
has been irregularly granted ; as when it has been granted 
within fourteen days after the death, or without citation to a 
party entitled. In these cases, the administration is not void, 
but voidable. 

The orphans' court may revoke an administration when it 
shall appear on examination, that the administrator has embez- 
zled, wasted, or misapplied any part of the estate committed to 
his care ; or when he shall refuse or neglect to give such bond 
with additional security, as may be required by the court. CL 
Dig. 221, sec. 4. 

If a non-resident executor or administrator shall refuse or 
neglect, after due notice from the probate court, to render his 
account, and to make settlement of the estate, or if any execu- 
tor or administrator shall become insane, or if any administra- 
tor (or executor) shall become otherwise incapable of, or evi- 
dently unsuitable for discharging the trust reposed in him, his 
appointment may be revoked by the probate court. CI. Dig. 
222, sec. 6. . . 



♦.• 



GQ ' REVOCATION. CAVEAT. 

The reasons of the whole of the section 4, on p. 221, CI. Dig., 
and of the clause, "or if any administrator shall become oth- 
erv^ise incapable, or evidently unsuitable to discharge the trust 
reposed in him," apply with as much force to executors as to 
administrators, and they are equally within the intention of the 
law. . 

If administration has been granted to a younger brother, it 
will not be revoked, unless it has been so granted as to be a sur- 
prize to the elder brother. If it has been granted to a creditor, 
and afterwards a creditor to a larger amount appear, it will not 
be revoked at the instance of the latter, unless he has been sur- 
prized by the grant to the former. 

When administration has been regularly obtained, in a pro- 
ceeding to revoke it, the party in possession is not required to 
propound his interest, until the party seeking revocation, has 
exhibited his own. 

EFFECT OF REVOCATION ON THE PRIOR ACTS. 

Whenever a court competent to take probate, or to grant let- 
ters testamentary, or of administration, has in fact taken pro- 
bate, or made the grant, the acts of the executor or administra- 
tor, performed in pursuance of this authority, up to the time of 
revocation, have legal validity, should the grant be revoked. 

But if, from the order establishing the will, or granting letters 
testamentary, or of administration, there has been an appeal, 
. this appeal suspends the order appealed from ; and the executor 
or administrator derives no authority from such order. Their 
acts performed during the pendency of the appeal, are unau- 
thorized and void. 

Suits instituted by or ag9,inst an executor or administrator, 
do not abate on the revocation of his appointment, but the suc- 
cessor may be made a party, on motion, and the suit may be 
prosecuted by or against him. CI. Dig. 227, sec. 30. 3 Al. R. 
568, Elliott, adrnr. v. Eslava. 

CAVEAT. 

It is usual to enter a caveat, when there is a question in the 
probate court as to the validity of a will, or the right to admin- 



. PROHIBITION. ACTIONS WHICH SURVIVE. 67 

istration. It is a caution filed in the probate court, to prevent 
probate, or grant of administration, until the party filing it can 
be heard. It is merely a cautionary act, to prevent the probate 
court granting a wrongful order, and it has no binding authori- 
ty. Administration is not to be revoked because of its having 
been granted, without regard to the caveat. 

PROHIBITION. 

When the probate court is about to transgress the bounds 
prescribed by law, in granting, or in repealing probate, or ad- 
ministration, it may be restrained by prohibition from the cir- 
cuit court. This process is used, not to control or supersede 
the judgment of the probate court, on a matter within its juris- 
diction, but to prevent its making an order on illegal grounds. 

There are cases of trust in which a prohibition will issue from 
the chancery court to the probate court, as where a sum of 
money is bequeathed to a legatee in trust for another, and the 
trustee is endeavoring, by a proceeding in the orphans' court, to 
get the money into his own hands, a court of chancery may 
restrain the orphans' court, in order to enforce the trust. 

jV )■■ y >, i Vi.l-\J,. ■■! ;:.., n W H j j ^- '- - _^ '4 
ACTIONS WHICH SURVIVE TO THE EXECUTOR OR ADMINISTRATOR. 

With respect to such personal actions as are founded on any 
obligation, contract, debt, covenant, or other duty, the right of 
action, on which the testator or intestate might have sued in 
his life-time, survives to his executor or administrator. 

If the goods of the deceased, taken away in his life-time, con- 
tinue in specie in the hands of the WTong-doer, detinue may be 
maintained by the executor or administrator, to recover them 
back. If they have been sold, he may maintain an action for 
money had and received, to recover the price. 

A suit depending, will not abate by the death of the plaintiff" 
or defendant ; but may be prosecuted or defended, by the exec- 
utor or administrator, to final judgment ; and sci.fa. may issue 
to the representative of the deceased party. CI. Dig. 313, sec. 
1. /6. 337, sec. 36. 

As the plaintifi', and after his death, his representative, is the 



68 ACTIONS WHICH SURVIVE. 

actor in the cause, it seems more than idle, that he should cause 
a sci. fa. to issue to himself. 

The action of" trover survives for and against executors and 
administrators. CI. Dig. 313, sec. 2. 

All actions of trespass quare clausum, and actions of trespass 
to recover damages for injury to personal property, may, on the 
death of the plaintiff, be revived by the executor or administra- 
tor, in the same manner as actions on contract ; and proceed- 
ings on the writ of ad quod damnum may be revived in like 
manner, on motion. But an action of trespass for an injury 
done to the person or property of the deceased, in his life-time, 
cannot be commenced de novo by the executor or administra- 
tor. CI Dig. 314, sec. 5 and 6. 6 Port. 109, Blakeney v. 
BlaJieney. 

Actions on covenants real will, in many cases, not enure to 
the executor or administrator ; but will descend to the heir. 
On a warrantee of lands to the grantee, on breach, the right of 
action descends to his heirs, even though the breach were in 
the life-time of the ancestor. 

But if the ultimate damage has been sustained in the life- 
time of the ancestor — as where he has been evicted, and conse- 
quently the land has not descended to the hen% the covenant 
does not descend to the heir ; and the executor or administrator 
may maintain an action for the breach. 

Whenever the reversion is for years, the executor or admin- 
istrator is the only party capable of maintaining an action on a 
covenant with the lessor, whether it run with the lands, or be 
in grass. 

When there is a sole plaintiff, and he dies after final judg- 
ment, and before execution; his executor or administrator may 
have execution, by sci. fa. against the defendant. If the execu- 
trix or administratrix be a feme covert, her husband must be 
made a party to the sci. fa. And the same practice prevails in 
chancery. 

If the plaintiff die after execution has issued, his executor or 
administrator may proceed without sci. fa. 

When one of several plaintiffs in a personal action, dies after 
judgment, and before execution, the survivors may, within a 
year after the judgment, have execution without sci. fa.; and 



APPRENTICES. CHOSES IN ACTION OF THE WIFE. G9 

the execution must be in the name of all the parties, so as to 
correspond with the judgment. 

In personal actions, a right to writ of error, passes to the 
personal representatives. 

APPRENTICES. 

Executors and administrators have no interest in apprentices 
bound to the testator or intestate. The contract of apprentice- 
ship is founded on a personal trust ; and it cannot be transfer- 
red, except by the master in his life-time, with the consent of 
the judge of the orphans' court. The contract does not pass to 
the executor or administrator. 

RIGHT OF THE EXECUTOR OR ADMINISTRATOR, TO CHOSES IN 
ACTION, AS IT REGARDS HUSBAND AND WIFE. 

Choses in action of the wife consist of debts due to her on 
bond or otherwise, arrears of rent, legacies, trust funds, and 
other property recoverable by action at law. By virtue of the 
marriage, these become the property of the husband, only by his 
reducing them to possession. If he die before his wife, with- 
out having reduced them to possession, they do not pass to his 
executor or administrator, but survive to the wife. 

If an obligation be made during coverture, to husband and 
wife, and the husband die first, it does not pass to his adminis- 
trator, but survives to the wife. And the same rule applies, 
when a bond or note is given to the wife alone, during cov- 
erture. 

If rent is in arrear, which had been reserved to husband and 
wife, jointly, on a lease of the wife's property ; and the husband 
die first ; a right to the rent in arrear will not pass to his exec- 
utor or administrator ; but belongs to the wife. 

In order to defeat the wife's right of survivorship in her choses 
in action, the possession of the husband must be real, such as 
to divest the wife of the right, and to vest it in himself, abso- 
lutely — as in case of a judgment recovered in an action com- 
menced by him alone ; or of award of execution on judgment 
recovered by husband and wife ; or of a decree in equity, for 



70 CHOSES IN ACTION OF THE WIFE. 

payment of money to him; or of a receipt of the money ; or if 
the money be received by a person authorized by husband and 
wife to receive it. In these and the like cases, the possession 
of the husband defeats the right of survivorship of the wife ; 
and the right to the money will pass, after the death of the hus- 
band, to his executor or administrator. 

The husband's receiving interest on a debt due to the wife, 
without getting in the principal, is not such a possession, as will 
defeat the right of survivorship of the wife. 

The possession of the husband, in a representative character 
as trustee, executor, or administrator, will not defeat the right 
of survivorship of the wife. For this purpose, the possession 
must be as husband. 

In an action on the chose in action of the wife,' if she be a 
party with her husband, and he die after judgment, and before 
execution sued out, his executor or administrator will have no 
right in it. The judgment will survive to the wife ; and she 
may have sci. fa. on it. But if the action had been brought in 
the name of the husband alone, the right to the judgment would 
be in his executor or administrator. 

As a joint judgment will survive to the wife, if the husband 
die before execution has issued; so will a joint decree in chan- 
cery, if execution has not issued on it, nor an order been made 
for payment, or declaring the money to belong to the husband. 

An award in favor of the husband, in a controversy with a 
third person, on the chose in action of the wife, alters the prop- 
erty, and vests the right in him. And on his death, it would 
be vested in his executor or administrator. 

Whenever the husband has reduced to possession, the choses 
in action of the wife, if he survive her, he may bring an action 
in his own name, and not as her administrator, for what relates 
to such choses in action ; as where on a bond to the wife, dum 
sola, the husband gives to a third person, authority to receive ,, 
the money due, and that person receives it ; and then the wife 
dies; the husband may bring an action to recover it from the 
receiver, individually ; and not as administrator. 

If previously to marriage, the wife had obtained a judgment ; 
and after marriage she and her husband sue out a sci. fa. on 
which execution is awarded ; on this possession, the husband 



GENERAL POWERS OF EXECUTORS AND ADMINISTRATORS. 71 

may sue out a new sci. fa., in his individual character; and on 
the death of the husband, the right will pass to his executor and 
administrator. 

RIGHT TO CONTINGENT INTERESTS. 

Contingent and executory interests pass to the executor or 
administrator, when the testator or intestate dies before the 
happening of the contingency, on which they depend. 

POWER OF THE EXECUTOR AND ADMINISTRATOR, GENERALLY. 

Within a convenient time after the death of the testator, or 
the grant of administration, the executor or administrator has 
a right to enter the house which may have descended to the 
heirs, in order to remove the goods of the deceased ; but he 
must do this without force — as, if the door be open ; or being 
locked, if the key be in the door. If he have access to the hall 
or parlor without force, this will not justify his breaking open a 
room that is locked, to take possession of the goods in it. He 
has a right to take deeds and other writings relative to the per- 
sonal estate, out of a chest in the house, if the chest be open, or 
if he have its key. But he has no right to break open the 
chest. If he cannot obtain possession of the effects of the de- 
ceased, without force, he must resort to an action at law. 

The judge of the probate court may authorize an executor or 
administrator, on application made, and good cause shown, to 
keep the personal estate together, exempt from sale, for such 
Jtime as he may deem advisable, not exceeding ten years. But 
this provision must not conflict with the disposition of property 
contained in a will ; nor with the right of creditors ; nor with 
the claim of any legatee, or distributed to their respective 
shares, when twenty-one years of age. CI. Dig. 198, sec. 30, 
34, 35. 

When an executor or administrator shall be authorized bv 
the judge of the probate court, to keep together the personal 
estate for ten years — for good cause shown, he may in like 
manner be authorized to retain the real estate in his possession, 
and to cultivate it, reserving to the widow her dower. CI. 
Dig. 199, sec. 37. 



1* 



72 GENERAL POWERS OF EXECUTORS AND ADMINISTRATORS. 

The executor or administrator may rent the real estate, at 
public outcry, until final settlement ; and the rents shall be 
assets. CI. Dig. 199, sec. 36. 

When the real estate is rented by the administrator, the right 
of entry of the heir is suspended. 1 AL R. 493, Harkins et 
al. V. Pope et al. 

The administrator may recover rents due either before, or 
after the death of the intestate. But the heir mav sue for, and 
recover rent accruing after the death of the intestate, until the 
administrator assert his authority over the rents, by notice to 
the tenant, or by suit. 10 Al. R. 60, Masterson v. Gerard's 
Heirs. 

The real estate may be sold by the executor or administra- 
tor, under an order of the probate court, obtained in the mode 
prescribed by law : but he must reserve forty acres, not to ex- 
ceed in value four hundred dollars, for the use and benefit of 
permanent, settled families, for cultivation. CI. Dig. 224, sec. 
16. lb. 210, sec. 48. 

And under an order of the probate court, he may sell the 
personal estate ; except the dead victuals and liquors, which, at 
the death of the testator or intestate, shall have been laid up for 
consumption in his family ; and which shall remain for the use 
of the family, not to be accounted for, as assets : and except 
also all such property as shall be exempt from execution. The 
following articles are exempt from execution, under existing 
laws ; and retained for the use of the family : two beds and 
their furniture ; two cows and calves ; two spinning wheels ; 
two axes ; two hoes ; five hundred pounds of meat ; one hun- 
dred bushels of corn ; all the meal that may be at any time on 
hand ; two ploughs ; one table ; one pot ; one oven ; two water- 
vessels ; two pair of cotton cards ; all books; one churn; three 
chairs; one work-horse, mule, or pair of oxen; one horse-cart 
or ox-cart; one gun; all tools or implements of trade; twenty 
head of hogs ; one thousand pounds of fodder ; one loom ; one 
man's saddle ; and one lady's saddle ; the ungathered crop, and 
twenty-five bushels of wheat. CI. Dig. 223, sec. 13. lb. 224, 
sec. 15. lb. 196, sec. 20, 21. lb. 210, sec. 46, 47. 13 Al R. 
529, Carter v. Hinkle. 

A promissory note made payable to the deceased, cannot be 



GENERAL POWERS OF EXECUTORS AND ADMINISTRATORS. 73 

indorsed by the executor or administrator, so as to transfer the 
property, unless by directions in the will, or under an order of 
sale, of the orphans' court. 

The executor or administrator may hire the slaves of the 
estate, by private contract. Act of 1850. 

POWER OF ONE OF SEVERAL EXECUTORS OR ADMINISTRATORS. 

Executors and administrators on any one estate, however 
numerous, are regarded in law, as an individual person ; and 
they have a joint, and each of them has an entire, authority 
over the whole estate. The act of any one of them, in the ad- 
ministration of the effects, is deemed the act of all. A release 
of a debt by one of them, is valid, and binds the others ; and the 
assent of one executor, to a legacy, confirms the right of the 
legatee. 

If one of several executors or administrators dies, the whole 
office will survive to the others who may be in life. 

The ordinary functions incident to the office of executor, may 
be exercised by one, when several have been appointed execu- 
tors, and the others renounce. 

When there are several executors, and a power is given to 
them, it has been made a question, whether, when one of them 
dies, the power can be exercised by the survivor, or survivors. 
It seems to be the better opinion, that as the office survives, the 
power connected with the office also survives. 

If the power should be extinguished, equity will interpose, to 
prevent a failure in the will of the testator ; and will appoint a 
trustee : or, considering the property as bound by the trust, 
will compel the executor to fulfill the trust. 

RIGHT TO RETAIN. 

An executor or administrator cannot sue himself; and he 
may therefore appropriate a sufficient part of the assets, for a 
debt due to himself, when the estate is solvent. He may retain, 
not only for debts which he claims beneficially ; but also for 
those due to him as trustee. And he may retain for debts due 
to another, as trustee for him. 
8 



74 GENERAL POWERS AND DUTIES 

If a married woman be executrix or administratrix, she and 
her husband may retain, for a debt due to her, or to the hus- 
band, before or during marriage. 

An executor or administrator may not retain for damages; 
of which he has no right to determine the amount — as damages 
for a tort. 

GENERAL DUTIES OF AN EXECUTOR OR ADMINISTRATOR. 

INVENTORY. 

Executors and administrators shall file, in the probate office, 
within three months after their appointment, a sworn inventory, 
showing all the goods and chattels, rights of, and debts due or 
accruing to, the testator or intestate at the time of his death, 
which have come to their possession or knowledge ; setting 
forth the times at which the debts are due, and whether due by 
open account, note, or bond. CI. Dig. 225, sex. 26. 

The inventory ought to distinguish between those debts 
which are sperate, and those which are doubtful, or desperate. 

If the appraisement which may be returned by the appraisers, 
be sworn to by the executor or administrator, it will be received 
as his inventory. CI. Dig. 223, sec. 1 1. 

The statute requiring that an inventory be returned, is equally 
binding on all executors and administrators, whatever be the 
order for their appointment, or limit of their authority. And 
the omission to return an inventory, is a breach of the bond of 
an executor or administrator. 

The ecclesiastical courts of England will receive an allega- 
tion in objection to the inventory ; and will compel the execu- 
tor or administrator to answer it under oath. And if the 
answer admit more assets than are included in the inventory, 
they will require the inventory to be amended so far, But 
those courts will not permit witnesses to be examined to falsify 
the inventory, in order to its being amended ; because the in- 
ventory is an admission under oath, of the executor or adminis- 
trator ; and he cannot be required to admit, or to swear to that, 
which he denies. 

The supreme court of Alabama has decided, that the probate 
court has authority to try the correctness of an inventory ; and 



OF EXECUTORS AND ADJVI[NISTRATORS. 75 

to determine, whether certain property not included, ought not 
to be embraced in it. 2 Port. 328, Dohbs et al. v. Disfs of 
Cockerhern. 

Inventories must remain in the probate office, subject to in- 
spection. CI. Dig. 302. sec, 27. 

An inventory is prima facie evidence against the adminis- 
trator; but he may show error in it. \Q Al. R 41. Craig 
and wife v. McGehee and Armstrong. 

APPRAISEMENT. 

It is the duty of the executor or administrator, without delay, 
to apply to the probate court, to appoint appraisers. And the 
court ought to appoint three discreet persons as appraisers ; and 
it must designate the time, within which the appraisers shall 
make their return. They must appraise all the personal estate 
of the deceased, to them shown, and make return of their ap- 
praisement, within the time limited by the court. This ap- 
praisement may be given in evidence, in any suit for or against 
the administrator, by either party ; and shall be prima facie, 
but not conclusive, evidence of the value of the property ap- 
praised. CI. Dig. 22^, sec. 11. 10 Al. R. 608, Steele v. Knox. 

COLLECTING THE EFFECTS. 

It is the duty of the executor or administrator, diligently to 
collect the goods and chattels of the deceased ; and for this pur- 
pose, the law has clothed him with ample powers. When he 
cannot otherwise collect them, he must bring suit for them If 
by unduly delaying to bring an action, he has enabled a debtor 
of the estate to defeat a claim, by a plea of the statute of limita- 
tions, the executor or administrator will be personally responsi- 
ble for the loss. 

PAYMENT OF DEBTS. 

Within two months after their appointment, executors and 
administrators must publish, in a newspaper printed in the state, 
a notice to persons having claims against the estate, to exhibit 
them within the time limited by law, or they will be barred. 



76 • ' SALES. ' ■ 

The notice must state the time at which letters testamentary, 
or of administration were granted ; and the publication must 
be continued once a week for six weeks. 

If the executor or administrator shall fail to give the notice 
within the time limited, claimants may exhibit or file their 
claims at any time within eighteen months after the notice shall 
have been given. Act. of 1850. 

Debts are entitled to payment, before legacies. If the assets 
are not sufficient to pay both the debts and the legacies, the 
debts must be paid in toto, or as far as the assets will extend. 

The debts incurred on account of the last sickness, and the 
funeral expenses, have the first claim to payment. If the assets 
are sufficient for that purpose, they must be paid in full. If 
the assets are not sufficient to pay them in full, they must be 
^Siid pro rata, in exclusion of all other debts. 

Funeral expenses should be suitable to the position of the 
deceased, in society. The executor or administrator is not 
justified in incurring such as are extravagant, when the estate 
is solvent. When the estate is insolvent, a strict economy 
must.be observed, and the court will be scrupulous to allow 
beyond what is necessary ; but in determining what is neces- 
sary, regard must be had to the station of the deceased in the 
community. And as the funeral expenses are generally in- 
curred, before the executor or administrator can know the 
condition of the estate of the deceased, the court will be in- 
clined to be indulgent to him. 

Lands of deceased persons shall be assessed to their estates, 
for taxes ; and the personal property of the estate may be dis- 
trained for taxes. Acts of 1847, p. 14. 

■ « ' - SALES, GENERALLY. 

An executor or administrator is not authorized to sell the 
dead victuals and liquors, which, at the death of the testator or 
intestate, may have been laid up for consumption in his family; 
nor such articles as may by law be exempted from execution. 
CI Dig. 223, sec. 13. lb. 224, sec. 15. lb. 196, sec. 20, 21. 
lb. 210, sec. 46, 47. 13 Al. R. 529., Carter v. Hinkle. 

The property of estates shall not be sold at private sale. 



, ^ SALES. 77 

unless so directed by the will ; except that the crop may be 
sold, b}^ order of the probate court, in such manner as shall 
seem reasonable, and the situation of the estate may require. 
And in this case, the court must require the executor or admin- 
istrator to make a return of his proceedings under such order 
of sale, to the next probate court. And as another exception, 
the executor or administrator of an estate held together, may 
ship its crops of cotton, for sale. CI. Dig. 223, sec. 13. lb. 
224, sec. 15. Acts of 1847, p. 140. 

Sales by executors and administrators must not commence 
before the hour of twelve, M. ; nor continue later than five, P. 
M. ; and must be on the day set apart, by legal notice, for such 
sale. But if this time shall not be sufficient to complete the 
sale, the executor or administrator may continue the sale from 
day to day, by giving public notice thereof to the attending 
company, at the conclusion of the sale of each day. All sales 
commenced and (or) held in any other manner, shall be void. 
CL Dig. 224, sec. 14. 

An executor or administrator havinar an interest in the estate, 
may purchase at his own sale ; and his purchase will be sus- 
tained,, unless shown to have been accompanied with circum- 
stances of unfairness. 8 AI. R. 680, Julian et al. v. Rey- 
nolds et al. 2 St. 331, Wiley and Gayle v. White and Leslie. 

SALE OF PERSONAL PROPERTY. 

On the application of the executor or administrator, the pro- 
bate court may order a sale of personal property. On such 
order being made, the executor or administrator must advertise 
the time and place of sale, in three or more public places in the 
county, at least thirty days previous to the day of sale. And 
he must then and there sell the same, at public outcry, to the 
highest bidder. And he must give at least six months credit, 
the purchaser giving bond with security — unless it shall appear 
to the court, on proof, that a sale for cash is necessary for the 
interests of the estate : and then the sale may be made for 
cash, under the order of the court. CI. Dig. 223, sec. 13. 
Acts of 1847, p. 124. i 

An account of sale, sworn to and subscribed by the executor 



•^8 ' SALES. 

or administrator, must be rendered to the probate court. CI. 
Dig. 226, sec. 26. 

An administrator who obtains an order of sale, and without 
justifiable cause delays to sell for a long time, during which the 
property deteriorates in value, is responsible for what was the 
value of the property, at the time at which it should have been 
sold. \0 Al R.mS, Steele Y. Knox. 

SALE OF REAL ESTATE. 

Sale of lands, in pursuance of a will, must be made by the 
acting executor, if no other person be therein appointed for that 
purpose ; or if a person appointed in a will to sell, refuse to act, 
or die without completing the sale. CI. Dig. 598, sec. 14. 

An administrator cum testamento annexo, cannot execute a 
power to sell land, conferred in the will, on the executor. 4 
Al. R. 679, Lucus v. Doe, ex dem. Price. 10 Al. i?. 811, Posey 
et al. V. Conway et al. 

On the petition of the executor or administrator, real estate 
may be sold by order of the probate court ; and the equitable 
title may be sold, as well as the legal title. The petition must 
state the ground on which a sale is necessary, viz. ; either that 
the personal estate is not sufficient for the payment of the 
debts ; or that the real estate of the testator or intestate cannot 
be equally, fairly, and beneficially divided, among the devisees, 
or the heirs, without such sale of real estate ; it must describe, 
with particularity, the real estate proposed to be sold ; and it 
must state the names of the devisees, or heirs, and which of 
them are infants, or married women. CI. Dig. 224, sec. 16. 
7 Al. R. 855, Perldns, ex'r. et al. v. Winter s adinr. 8 Al. 
R. 100, Evans, admr. v. Matthews. 9 Al. R. 285, Jennings 
and Graham v. adm'r. of Jennings et al. 10 Al. R. 636, 
Duval's Heirs v. PI. and Mer. Bank, et al. 

On the filing the petition in open court, the court must order 
citations to all the devisees or heirs, who are of full age, and 
to the husbands of such as are feme covert, calling on them 
to appear on a particular day therein designated, at a regular 
or adjourned term of the court, not less than forty days from 
the issuing of the citation ; and answer the petition. The 



SALES. 79 

court must also forthwith appohit guardians, {ad litem) for such 
of the heirs or devisees as are minors, to answer, and de- 
fend against the petition — and the petitioner, or his heir, shall 
not be appointed such guardian. The guardians should be 
served with citation ; but this is not mentioned in the statute. 
And it is erroneous to decree a sale of the land, without the 
previous appointment of a guardian ad litem for the minor 
heirs : and the record must show the acceptance, as well as the 
appointment, of the guardian ad litem. 16 Al. R. 4:1, Craig 
and Wife v. McGehee and Armstrong. lb. G93, Jenkins' 
dist's. V. Jenkins' adm'rs. CI. Dig. 224, sec. 17. , 

The minor heirs or devisees must have notice of the petition 
for the sale of real estate, through the persons having the care 
of them. 4 Al. R. 253, Shilds et al. v. Alston. 

When heirs or devisees reside out of the state, or their resi- 
dence is unknown to the executor or administrator, on his 
making oath to that efiect, a notice of the petition may be given, 
by publication in one or more newspapers, for such length of 
time as the judge may order. CI. Dig. 225, sec. 25. 

It is the duty of the guardian ad litem, to deny all the allega- 
tions of the petition, in an answer not under oath; and, if ne- 
cessary, to employ counsel for his ward. CI. Dig. 224, sec. 18. 

When the allegations of the petition are denied, it is incum- 
bent on the petitioner, to satisfy the court, that the sale ought 
to be made, by proof by deposition, as in chancery. If pay- 
ment of debts is the ground of the deposition, the heir or de- 
visee may show, in opposition to it, that such debts are barred 
by the statute of limitations. CI. Dig. 225, sec. 19. 2 Al. 
R. 660, Heirs of Bond v. Smith, adnir. 12 Al. R. 268, 
McKin V. Bobo, adm'r. 

When the court is satisfied by the depositions, that the sale 
ought to be made ; or when the heirs or devisees are of mature 
age, and being cited, fail to answer, the court will order a sale 
of such real estate ; and it will direct the sale to be for cash, or 
on credit, or for cash as to part, and credit for the balance, as 
it should deem best. The sale must then be made by the exec- 
utor or administrator, on the terms and in the manner set forth 
in the order of sale ; and he must give notice of the time and 
place of sale, by advertisements put up at three or more pub- 



4 



80 SALES. 

lie places in the county in which the land is situated, at least 
forty days before the time of sale ; and by publication in a 
newspaper in the state, for three weeks successively, before the 
day of sale. CL Dig. 225, sec. 19. Ih. 229, sec. 45. lb. 225, 
sec. 24. 3 Al. R. 623, Heirs of Griffin v. Griffin, exr. 

When it shall be made to appear to the probate court, that 
the heirs to any estate will be less injured by a sale of its 
land, or of a part thereof, for the payment of debts, than by a 
sale of slaves, the court may, on the petition of a party inter- 
ested, order citations to all other parties in interest, to be served 
on them, if, (resident) in the country; if not, to be published in 
a newspaper, calling on them to appear at the next probate 
court, and show cause against such sale of land being ordered. 
At the next term of the probate court, on proof of service or 
publication, if no sufficient cause be shown to the contrary, the 
court must order a sale of the land, or of such part as may be 
necessary for payment of the debts. CI. Dig. 196, sec. 18. ■ 

Every executor or administrator authorized by the probate 
court to sell real estate, must, before he obtains the order of 
sale from the register's office, enter into bond with sufficient 
security, to the judge of probate, for observing the rules and 
directions of law, for the sale of real estate ; and for well and 
truly accounting for the proceeds of sale, and disposing of them 
agreeably to law. CI. Dig. 225, sec. 23. • /^ 

When real estate is sold under an order of the probate court, 
the title remains in the heirs, until the conveyance is executed 
to the purchaser. 5 Al. R. 324, Cummings and Cooper v. 
McCullough, adrnr. 

On such sale being made, if, with the consent of the pur- 
chaser, another be substituted for him, and the sale be confirmed 
by the probate court ; the sale to the substituted purchaser will 
be valid. 9 Al. R. 285, Jennings and Graham v. adm'r. of 
Jennings, et al. 

Sales made under the order of the probate court, are judicial 
sales ; and the rule of caveat emptor applies. In such sales, the 
purchaser has no right to indemnity, for any incumbrance rest- 
ing on the title. 9 Al. R. 297, Worthington, adm'r. v. Mc- 
Roberis, et al. 7 Al. R. 855, Perkins, exr., et al. v. Win- 
ter s adm'r. and heirs, et al. 



DISTRIBUTION. 81 

On a sale of real estate, under an order of the probate court, 
the purchaser cannot abandon his purchase, on the ground of 
irregularity in the sale, unless the irregularity has been such as 
to render the sale void ; and then, he may resist the demand 
for the payment of the purchase-money, even though he may 
have gone into possession. 9 Al. R. 297, Worthington, acbnr. 
V. McRoherts, et al, 3 St. and P. 355, Wt/lie and Gayle v. 
Leslie and White. 

The omission of the executor or administrator to perform 
any act required of him by the order of sale, or by the law, 
will render the sale void ; but the sale will not be invalidated 
by his omission to give the bond required by law, before the 
sale ; nor by his omission to perform any act required of him, 
after the sale. 6 Port. 219, Wyman, et al. v. Campbell, et 
al. 4 Al. R 442, Wie?^ and Davies v. Humphries. lb. 521, 
Dearman v. Dearman and Coffman. 12 Al. R. 298, Fambro 
V. Gautt. 

Proceedings in the probate court, in relation to the sale of 
real estate, are in rem, and not in personam ; and a sale may 
be ordered, although the parties in interest have not been noti- 
fied. 6 Port. 219, Wyman, et al. v. Campbell, et al. 

On sale of real estate, by the authority of the probate court, 
if the jurisdiction of the court be established, the purchaser's 
title will not be divested by a reversal of the decree of sale. 
Restitution of the purchase-money will be made; but the pur- 
chaser will hold the property. 8 Al. R. 99 Evans, adrnr. v. 
Matthews. 6 Port. 219, Wyman, et al. v. Campbell, et al. 

DISTRIBUTION. 

Right of the Husband in the Estate of the deceased Wife. 

The English statute of distribution did not give to the hus- 
band, any right to the whole of, or to a distributive part in, the 
estate of his deceased wife ; but the 29th Car. 2d, reserves 
the rights of husbands from the operation of that statute. In 
England, by the force of previous laws, the husband has a 
right to the whole estate of his deceased wife, intestate. 

The statute of distribution of Alabama, in like manner 
excludes the husband from distribution in the estate of his de- 



82 DISTRIBUTION. 

ceased wife ; and, except the act of 1847, we have no statute, 
saving him from the operation of the statute of distribution. 
Before the act of 1847, the husband was not entitled to any 
part of the estate of his deceased wife, intestate. 

By the act of 1847, if a married woman, having separate 
estate, die intestate, the husband will be entitled, absolutely, to 
one- half of her personal estate; and to one-half of her real 
estate, for life. Ads of 1847, jo. 79. 

Rights of the JVfe in the Estate of her deceased Husband. ' 

The wife is entitled to dower ; and this will be considered 
under a separate head. 

The act of 1847 has made a great change in the rights of 
the wife ; but this statute applies to those only who have en- 
tered into marriage since its passage. 

The rights of parties married prior to the passage of the act 
of 1847, are governed by the law, as it existed at the time of 
their marriage. It has therefore been necessary, wherever 
these rights have been considered in this treatise, to explain the 
law in force before the act of 1847. 

When a husband married before the passage of the act of 
1847, dies intestate; or, having made a will, had not made 
therein satis'actory provision for his wife, under former laws, 
she will be entitled, out of the personal estate of her deceased 
husband, after his debts have been paid, to a share as follows : 
if there be no child, or but one child, she shall have one-half; 
if there be more than one child, and not more than four, the 
estate shall be divided equally between her and the several 
children; and if there be more than four children, she shall 
have one-fifth part — in absolute right. CI. Dig. 178, sec. 4. 

Under the act of 1847, if the widow hold separate estate, 
equal in amount to what would be her dower, or distributive 
part, according to the foregoing scale, she will not be entitled 
to dower, or distributive part. But if her separate estate be 
less than her dower, or distributive part, there must be allotted 
to her, a share sufficient, with her separate estate, to be equal 
io dower, or distributive part. Acts of 1847, jo. 79. 

The language of this statute expresses very imperfectly, the 



't •» 



DESCENT. ' ^•. 83 

intention of the legislature. This appears to be the principle 
of the law. The separate estate of the wife is to be computed 
with the estate of the husband, as forming one estate. If the 
separate estate of the wife shall be equal to what would have 
been her distributive share of such aggregate estate, under the 
previous laws ; or if her separate estate shall be more than 
such distributive share ; then she is not to have any part of her 
husband's estate. But if her separate estate shall be less than 
what would be her distributive share of such aggregate estate, 
then she is to receive, from the husband's estate, an amount 
sufficient, when added to her separate estate, to make it equal 
to what would be her distribuiive share of such aggregate 
estate. Still there is ambiguity in the statute, in the use of the 
terms, " dower," and " distributive share," as synonymous. 

DESCENT. 

In the descent of the estate of an intestate, there is no dif- 
ference between real and personal property. An interest in 
an estate held jointly, on the death of a joint owner, intestate, 
descends to, and is vested in his heirs, or other legal representa- 
tives. CI Dig. 191, sec. 1. lb. 1(39, sec.Q. 

The estates of intestates descend to their next of kin, in the 
following order. 

1st. To a child, or to children in equal parts. 

2d. To brothers, and sisters, in equal parts. 

3d. To the father. 

4th. To the mother. 

5th. To the other next of kin, computing according to the 
civil law. 

A posthumous child, not provided for in a will, must have 
such share of the estate, as would have been his distributive 
share, in case of intestacy, to be assigned to him proportion- 
ably, from the shares of the legatees and devisees. CI. Dig. 
597, sec. 6. In case of intestacy, a posthumous child has the 
sanye rights as other children. 

There is no distinction between kindred of the whole-blood 
and those of the half-blood, except that kindred of the whole- 
blood are preferred to kindred of the half-blood in the same de- 
gree. CI Dig. 162, sec. 2. 



84 DESCENT. 

Children of a deceased brother of the whole-blood, are prefer- 
red to a brother of the half-blood. 3 St. and Port. 29, Hitch- 
cock V. Smith. {Quere.) 

Bastards inherit and transmit inheritance on the part of their 
mother, as if they were legitimate from her, and they are enti- 
tled to a distributive share of the personal estate of her kindred, 
as if they were legitimate from her. And the kindred of a bas- 
tard, on the part of his mother, are entitled to distribution of his 
personal estate, as if he were legitimate from her. CI. Dig. 
168, sec. 169, sec. 5. 

Children born before marriage, of parents who afterwards in- 
termarry, if recognized by the father, are deemed legitimate. 
They will consequently take by descent. CI. Dig. 168, sec. 3. 

OF CHILDREN AND THEIR REPRESENTATIVES. 

The statute directs that the estate shall descend to the chil- 
dren of the intestate and their descendants. The descendants 
of children here mentioned, are their lineal descendants, in any 
degree. When a child of the intestate is dead, the lineal de- 
scendants of such child take the part to which he would have 
been entitled if in life. 

Three classes of cases are to be considered ; 1st, when none 
of the intestate's children are dead ; 2d, when the intestate's 
children are all dead, each of them having left children ; 3d, 
when some of the intestate's children are dead, and some of 
them are living, and such as are dead having left children. In 
the first class, as each takes in his own right, the estate subject 
to descent is to be equally divided among them. In the second 
class of cases, the descendants of each deceased child of the in- 
testate will take what would have been the share of their de- 
ceased parent, if he were in life, to be equally divided among 
them. In the third class of cases, each living child is entitled 
to one share, and the descendants of each deceased child are 
entitled to one share, to be equally divided among them ; each 
living child taking in his own right, and the descendants of each 
deceased child together representing their parent. 

The same rules apply to brothers and sisters of the intestate, 
and their descendants. 



DESCENT. 85 

HOTCHPOT. 

When any of the children of a person dying intestate, shall 
have received from such intestate, in his life-time, any real or 
personal estate, by way of advancement, and shall choose to 
come into partition of the estate with the other parceners, the 
property so advanced, or the value thereof, shall be brought 
back, (into hotchpot,) and be computed as a part of the estate. 
And then the child bringing in such advancement will be enti- 
tled to an equal share in the whole estate. CI. Dig. 197, 
sec. 25. 

When property advanced shall be brought into hotchpot, and 
the parceners cannot agree as to its value, the value must be 
determined by the judge of probate, testimony being heard. 
For this purpose he may, in his discretion, have a jury impan- 
neled, and a jury shall be impanneled, if required by either 
party. The value of the property as it stood at the time of the 
advancement, is to be ascertained, and to be computed as a part 
of such child's share. CI. Dig. 197, sec. 26. 

A child who has received an advancement, and brings it 
back into hotchpot, in order to have an equal distributive share, 
must bring the advancement into that portion of the estate 
which is to be divided among the children. It is not to affect 
the share of the widow, which is computed out of the estate, 
exclusive of the advancement. 

If a child who has received an advancement, shall die in the 
life-time of his parent, leaving children, the same rule applies to 
them ; and to be entitled to a distributive share in right of his 
deceased parent, they must bring the advancement into hotch- 
pot. 

ADVANCEMENT. 

A provision made for a child, by a settlement, whether volun- 
tary, or for a good consideration, as marriage, is an advance- 
ment. 

To constitute an advancement, it is not requisite that the 
provision for the child shall take effect in the father's life-time. 
If by deed, executed by the father, he settle an annuity on one 

9 



86 ' DESCENT. 

of his children, to commence after his death, this is an advance- 
ment. 

A portion which was at first contingent, will be deemed an 
advancement, when the contingency has happened. And 
while contingent, if the contingency be so limited as to arise 
within a reasonable time, as a portion secured to a daughter, on 
her attaining the age of eighteen, or on her marriage, it will be 
an advancement, and must be surrendered into the estate, be- 
fore the child so provided for, will be entitled to an equal dis- 
tributive share. 

Money or property given by a parent to a child, is prima 
facie an advancement, but evidence may be adduced to show 
that it was intended as a gift, and not an advancement. Tri- 
fling presents to a child, as a gold-w^atch, or wedding-clothes, are 
not an advancement, nor is money expended on his education. 
8 Al. R. 414, Distributees of Mitchell v. Mitchell, admr. 

OTHER NEXT OF KIN. 

When there are no children of the intestate, nor descendants 
of children, then his estate is to be divided in equal parts among 
the brothers and sisters of the intestate, and their descendants ; 
the descendants of a deceased brother or sister of the intestate, 
to have, in equal parts among them, what would have been the 
share of their deceased parent, or ancestor. 

When there are no children, nor descendants of children of 
the intestate, and no brothers or sisters, nor descendants of 
brothers and sisters of the intestate, the estate will pass to the 
father of the intestate, if he be living ; if he be dead, it will pass 
to the mother of the intestate. 

If there be no children of the intestate, nor descendants of 
them, nor brothers or sisters of the intestate, nor descendants of 
them, nor father nor mother, then the estate will descend, in 
equal parts, to the next of kin, in equal degree, of the intestate, 
computing the degrees of kindred by the rules of the civil law. 
In tracing descent, there is no legal distinction between kin- 
dred of the whole-blood, and kindred of the half-blood, except 
that kindred of the whole- blood are preferred to kindred of the 
half-blood in the same degree. 



DESCENT. 87 

According to the rules of the civil law, the degrees of kindred 
are computed in the following manner. Count from either of 
the parties, whose degree of consanguinity is to be traced ; (that 
is, either from the intestate, or from the party claiming,) up- 
wards, to the comm'on stock, and then down to the other of 
those parties, calculating a degree for each person, both ascend- 
ing and descending. For example, to ascertain the degree in 
which a cousin stands to the deceased, begin counting from the 
deceased. Up to the father of the deceased, is one degree ; from 
him to the grandfather, who is the common ancestor, makes two 
degrees ; from him down to the uncle, makes three degrees ; 
from him to the cousin makes four degrees. The cousin of the 
intestate is in the fourth degree from him. 

There is no representation among collaterals, except as to 
the descendants of the brothers and sisters of the intestate. If 
the kindred of the deceased should be an uncle, and the son of 
another uncle, who is deceased, the latter will not be entitled to 
a distributive share. And the same rule applies to the descend- 
ants of all other collateral kindred. Among collaterals, except 
the descendants of brothers and sisters, the right by descent de- 
pends on the proximity of blood of the individual claimant. 

DOMICIL ABROAD. 

The general rule of law is, that the personal estate of the in- 
testate must be distributed according to the law of the country^ 
of which he was a domiciled inhabitant, at the time of his death. 

The place where a man resides is, prima facie, his domicil- 
But this inference may be rebutted, by evidence showing that 
his residence there is either constrained by the temporary ne- 
cessity of his affairs, or that it is in itself transitory. 

To ascertain the domicil, the following rules have been ob- 
served. 

The domicil, whether original or acquired, is not lost by mere 
abandonment; nor is it lost by the intention to remove. A 
man's domicil continues unchanged, until the intention and the 
act concur, in acquiring a different domicil. But there is an 
exception to this rule, when the party dies in itinere, on his 
journey to an intended domicil. 



88 ASSETS. LIABILITY FOR DEBTS. 

A new domicil cannot be acquired by the party's own act 
during minority. 

After the death of the father, children remaining under the 
care of their mother, follow any new domicil which she may 
acquire during their minority, unless it appear that such new 
domicil was acquired for the fraudulent purpose of altering the 
rule of succession. 

ASSETS. 

Assets are those goods and chattels, and rights of every kind, 
in possession or in action, which belonged to the deceased at 
the time of his death ; and which, after his death, come to the 
hands or power of the executor or administrator, as belonging 
to him in right of his office ; and also whatever may come to 
the hands or power of the executor or administrator, in lieu, or 
by reason of the goods, chattels, and rights above-mentioned, or 
as their product or increase. All profits which in any way ac- 
crue on the estate in the hands of the executor or administra- 
tor, are assets. 

Money in the hands of the deceased, belonging to others, so 
mingled with his own as not to be distinguishable, in the hands 
of the administrator or executor is deemed assets, subject to the 
claims of his creditors, generally. 8 Port. 2J 1, Maury's admr. 
V. Mason s admr. 

As there is no priority among debts, but all of every grade, 
excepting debts for the last sickness, and for the funeral, have 
equal claim to payment ; it is not essential to consider the dis- 
tinction between legal and equitable assets. 

DIFFERENT LIABILITIES OF THE PERSONAL AND OF THE REAL 

ESTATE FOR DEBTS. 

The personal estate of any deceased person, whether testator 
or intestate, stands chargeable with all the debts due by the de- 
ceased, and with the funeral expenses, and with the proper ex- 
penses of settling the estate ; and the lands, tenements, and he- 
reditaments of the testator or intestate, stand chargeable with 
all the debts of the deceased, over and above what the personal 
estate may be sufficient to pay. CI. Dig. 191, sec. 1. 



LIABILITIES OF THE PERSONAL AND REAL ESTATE. 89 

It is a consequence of the foregoing statute, and of the stat- 
ute enabhng an executor or administrator to procure the sale 
of real estate for the payment of debts, that an action at law 
cannot be sustained against the heir, on the debt of his ances- 
tor ; and that the real estate may be subjected in equity, after 
the personal estate has been exhausted, whatever be the nature 
of the debts. 

When a judgment shall have been obtained against any per- 
son, in his life-time, and shall remain unsatisfied, at his death, 
and the executor or administrator shall fail to apply to the or- 
phans' court, for authority for the sale of the real estate, in 
order to pay the debts, the judgment-creditor may, on filing in 
the office of the clerk of the court rendering the judgment, a 
su2;o;estion that real estate has descended to the heirs, and that 
the sale of said real estate, or of some part thereof, is necessa- 
ry for the satisfaction of said judgment, and that the executor 
or the administrator has failed to apply to the probate court for 
an order of sale thereof, at the same time setting out the names 
of the executor or administrator, and of the heirs, sue out a 
scire facias against said executor or administrator, and heirs, 
returnable to the next term of said court, calling on them to 
show cause why said plaintiff should not have execution against 
said real estate. And if sufficient cause be not shown to the 
contrary, execution shall be awarded against said real estate. 
67. Dig. 197, sec. 27. 5 Al. R. 499, Fitzpatrick and others v. 
Edgars. 

In answer to the 5czre facias mentioned in the preceding 
paragraph, and to prevent execution being awarded against the 
real estate, it will be sufficient to show that the personal estate 
has not been exhausted. 

In judgment against an. administrator, lands descended can- 
not, by scire facias against the heirs, be made liable to execu- 
tion. 1 Stew. 193. 

EXONERATION OF THE REAL BY THE PERSONAL ESTATE. 

It is at the option of the mortgagee of lands descended or de- 
vised, to proceed against the land for foreclosure, or in an ac- 
tion at law, against the executor or administrator, for the debt. 
9* 



90 3IARSHALLING THE ASSETS. 

If the land was purchased by the ancestor, subject to the mort- 
gage, it descends cum onere. But when it was charged with 
the proper debt of the ancestor, then, if it shall be made liable 
in the hands of the devisee, he has a right to be reimbursed out 
of the personal estate, provided that, by so doing, he will not 
defeat the claim of any creditor. 

Specific legatees will be made to contribute proportionably 
with the land, but will not exonerate it, except />?^o rata. 

But although the debt charged on the land, was not the proper 
debt of the ancestor, he may choose to exonerate the real, and 
to charge the personal estate. But for this purpose, the inten- 
tion of the testator must be clearly expressed in the will. If 
the testator in his will, charge that his debts be paid out of his 
real and personal estate, the onus will not thereby be removed 
from land which came to him already mortgaged. 

The persona] estate is the first fund to be resorted to for the 
payment of debts, and of legacies, and if the testator charge his 
real estate with the payment of his debts, or of his debts and 
legacies, and add nothing in exoneration of his personal estate, 
this amounts to no more than a declaration, that the real estate 
shall be so applied, to the extent to which the personal estate 
shall be insufficient for the payment. The real estate alone will 
be charged, only when, from the whole testamentary disposition 
taken together, a judicial mind may be convinced, that it was 
the intention of the testator, so to charge the real estate as to 
exempt the personal. To ascertain this intention, no definite 
rule can be laid down, but it must clearly appear in the will. 

MARSHALLING THE ASSETS. 

As the whole estate, both real and personal, is in this state 
subject for the payment of all the debts, we perhaps have no oc- 
casion for marshalling assets, as between creditors. 

If a creditor have a specific lien on real estate, as a mortgage, 
and he resort to the personal, the assets will be marshalled in 
favor of legatees, against real assets, either devised or descend- 
ed, and the legatee of the personalty will stand in the place of 
the mortgagee. And the same principle requires, that when a 
creditor having a general lien on real estate, is satisfied out of 



DEVASTAVIT. 91 

the personal estate, a legatee of the personalty, who cannot be 
otherwise satisfied, may avail himself of the general lien of the 
creditor, and in the use of this remedy, he will stand in the 
place of the creditor. 

When the legacy of one legatee is charged on the real, but 
is satisfied out of the personal estate ; another legatee, whose 
legacy is not so charged, will stand in the place of the first leg- 
atee, and be satisfied out of the real estate. 

The probate court has no authority to marshall the assets. 
Lands not devised, cannot be sold by its authority, for the pay- 
ment of debts, in order to secure a pecuniary legacy. 10 AL 
R. 172, Price, guard: n v. Wilkinson's exrs. 

DEVASTAVIT. 

In determinino; on the liabilitv of executors and administra- 
tors, courts keep two principles in view ; 1st, in order not to 
deter the rightful parties from undertaking these offices, the 
court is very liberal in making allowances, and cautious not to 
hold executors and administrators personally liable on slight 
grounds ; 2d, it is vigilant in guarding against abuse of the trust, 
by them. 

Executors and administrators may be guilty of devastavit, 
by a direct abuse, as by spending or consuming the assets, or 
converting them to their own use. 

They may also commit a devastavit, by such acts of negli- 
gence, and wrong administration, as will disappoint those who 
have claims on the assets. 

The expenditure of an unreasonable sum, in funeral expenses, 
is a devastavit. 

The payment in full, of a legacy or of a debt, when there are 
not sufficient assets to pay all the debts exhibited within eight- 
een months after the first grant of letters testamentary, or of 
administration, is a devastavit. 

If an administrator releases a debt due to the testator, or 
cancels, or delivers up a bond which was part of the assets, this 
is a devastavit so far, as to charge the executor or administra- 
tor personally with the amount, whether he received the money 
or not. 



92 DEVASTAVIT. 

An executor or administrator is guilty of a devastavit, if he 
apply the assets in payment of a claim, which he was not bound 
to discharge — as if he apply them in paying for the schooling, 
feeding, and clothing of the children of the deceased, subsequent 
to his death. 

It is a devastavit, to pay usurious interest, or a debt ex turpi 
causa. 

Acts of negligence or carelessness in an executor or adminis- 
trator, by which loss accrues to the estate, amount to a devasta- 
vit — as if he delays so long to commence an action, as to enable 
the debtor to protect himself by the statute of limitations; or 
when, after a long delay to collect, the debtor becomes insolvent. 

In the case of Crosse (J- Smith, 7 East 258, it is said, that if 
assets have come to the hands of an executor or administrator, 
and are afterwards lost without fault on his part, in favor of 
creditors, in a court of law this will be considered a devastavit. 
But this seems contrary to established principles, and an oppo- 
site doctrine certainly prevails in the chancery courts, and or- 
phans' courts. When the executor or administrator exercises 
a reasonable degree of discretion and diligence, they will not 
hold him guilty of a devastavit, even though loss accrue to the 
estate. 

He is not justifiable, in keeping the money of the estate un- 
productive in his hands ; and if he fail to invest it in such man- 
ner as may be deemed safe, he is guilty of a devastavit, to the 
extent of the interest which ought to have been made. 

He ought not to permit the money to remain on personal 
security, longer than is absolutely necessary ; and his failure to 
do so, is a devastavit, if loss accrue. 

If an executor or administrator, without necessity, confide 
the interests of the estate to an agent, he will be responsible for 
the acts of such agent. If, out of the established course of 
business, he authorize another to receive the money of the es- 
tate ; and that agent receive it, and refuse to pay it over, this 
will be a devastavit. 

But if loss be sustained by the failure of a bank, in which the 
testator or intestate had deposited his money ; or in which, 
from necessity, or in conformity with common usage, the exec- 
utor or administrator had made a deposit, this is not a devasta- 



DEVASTAVIT. 93 

vit. And if the money of the estate pass into the hands of an 
agent, according to the estabHshed course of business, and is 
lost — -as in the case of money collected by an attorney at law, 
or the proceeds of a crop sold by a commission- merchant — the 
loss does not constitute a devastavit, unless there be peculiar 
circumstances, showing default or negligence on the part of the 
executor or administrator. 

But if he deposit the money in bank, not in a separate ac- 
count as executor or administrator, but on his general account, 
mixing it with his own money, he will be personally responsi- 
ble ; and any loss accruing, will be a devastavit. 

The omission of an executor or administrator to apply to the 
probate court, for authority to sell the real estate, within three 
months after reporting the estate insolvent, is a devastavit ; for 
which he may be sued, with his securities, on his bond. It is 
not clear, what liability is fastened on the executor or admin- 
istrator, by this devastavit. Does it make him personally re- 
sponsible, for the whole of the debts of the. estate? Or, for 
debts to the amount of the value of the real estate not sold? 
This is the most reasonable construction. Can he then reim- 
burse himself, by the sale of such real estate ? CI. Dig. 198, 
sec. 27. 

To make settlement and distribution, in the probate court, 
before the debts are paid, is a devastavit. 5 Al. R. 13, Thrash 
V. Sumwalt. 

A devastavit by one executor, will not charge his co-execu- 
tor, unless the latter have in some way contributed to it. Un- 
der ordinary circumstances, one executor is not responsible for 
assets which went into the hands of his co-executor. But if an 
executor, having assets, hand them over to his co-executor, and 
they be by him misapplied, the first will be chargeable with the 
devastavit, unless he show a good reason for having so acted. 

In general, when by the act of one executor, any part of the 
estate come into the hands of the co-executor, the former will 
be answerable for the latter, to the extent to which he would be 
for a stranger, whom he had entrusted to receive it. 

It is now the settled doctrine of the courts, that when a joint- 
receipt is given by executors or administrators, and one only 
receive the money, and the other join in signing the receipt 



94 DEVASTAVIT. 

merely for form ; the latter is not chargeable with a devastavit, 
on the misapplication of the money by him who received it. 
But if the joint-receipt be given under circumstances showing 
that, though the money was not actually received by both ex- 
ecutors, yet it was under the control of both, each will be held 
responsible for the money. 

DEVASTAVIT, IN CASE OF A MARRIED WOMAN. 

If a feme sole executrix or administratrix waste the goods of 
the estate, and then marry, her husband will be liable for the 
devastavit, so long as the coverture may continue. But on her 
death, his liability ceases- And the rule is the same, if she 
waste the goods during coverture. 

The general rule is, that the liability of the husband for the 
devastavit of the wife, ceases on the death of the wife. And 
therefore no proceeding can be had, either by action of debt on 
2i devastavit, or by sci.fa., against the husband of an executrix 
or administratrix, if she die after judgment de bonis testatoris 
ag-ainst herself and her husband.* 

O 

But in equity, the husband, surviving, is liable for all the 
assets which had come to the hands of his wife during cov- 
erture. 

If waste be committed during coverture, by the husband who 
has married a feme sole executrix or administratrix, and she 
> survive him, she will be responsible for his devastavit. And 
the wife will in like manner be responsible for the devastavit of 
her husband, if, during coverture, her husband obtain letters 
testamentary, or of administration, on her right, with her con- 
sent. But if the husband, without her consent, obtain letters 
in her name ; and she do not intermeddle in the estate ; after 
his death she may renounce, and thereby escape responsibility 
for his devastavit. 



LIABILITY OF EXECUTORS AND ADMINISTRATORS. 95 

LIABILITY OF EXECUTORS AND ADMINISTRATORS, ON THE ACTS OF 

THE DECEASED. 

The executor or administrator is liable, so far as he has re- 
ceived assets, for all the debts of the deceased, of whatever kind 
they may be. Every bond, covenant, or other contract extends 
to executors and administrators, although not mentioned in it. 

The executor or administrator is liable, not only on a promise 
of the deceased to pay a debt certain ; but also on his promise 
to do an act, the breach of which rests in uncertain damages 
Whenever, on such promise, the testator or intestate is liable, 
the executor or administrator, also is liable. 

In many cases, a liability on the contract of the testator or 
intestate may accrue after his death ; and this liability will rest 
on the executor or administrator. 

But some personal contracts do not come under this rule ; as 
when an author engages to compose a work, and dies before its 
completion. On this failure, the executor or administrator is 
not liable. .* 

By the common law, an executor or administrator was not 
held liable for the tortious act of the deceased. The rule, actio 
personalis moritur cum persona, applies, when the action is 
founded on a malfeasance, or misfeasance ; when it arises ex 
delicto, such as trespass for taking goods, false imprisonment, 
assault and lattery, slander, deceit, diverting a water-course, 
obstructing lights, and many other cases of similar character. 
In these cases, on the death of the person charged with the 
w^rong, his executor or administrator is not liable for the 
damage. 

But the action of trover, on the death of the plaintiff or de- 
fendant, may be revived for or against his executor or adminis- 
trator. CI. Dig. 313, sec. 2. 

If goods taken wrongfully by the deceased, remain in specie 
in the hands of his administrator or executor, he is liable for 
them ; and he is liable for their value, if they have been sold. 

If a tort be committed by a common carrier, his executor or 
administrator is liable for the breach of contract ; but not as 
for a tort. 

After recovery in an action of ejectment against the de- 



96 LIABILITY OF EXECUTORS AND ADMINISTRATORS. 

ceased, his executor or administrator is liable for the use and 
occupation of the land, for the time previous to the day of the 
demise laid in the declaration ; but not for any time subsequent 
to that day. For the plaintiff, having chosen to consider the 
holding as founded in tort, (trespass,) cannot afterwards treat 
it as founded in contract. 

The executor or administrator is not liable for the waste of 
the testator or intestate ; but he is responsible for any benefit 
derived by the testator or intestate, from the value or sale of 
trees taken from the land. 

In a court of chancery, the executor or administrator will be 
held liable for the consequences of a breach of trust by the exec- 
utor or administrator. 

The executor or administrator is bound, so far as he has 
assets, by all judgments against the testator or intestate, and all 
recognizances entered into by him. 

When a joint obligor dies, his executor or administrator is 
liable on the joint-debt or contract. CI Dig. 323, sec. (30. 

If a partner die, his executor or administrator will be liable 
in chancery, for the partnership debts. 

On the covenant of the deceased, the executor or administra- 
tor is liable for a breach occurring during his administration ; 
as in case of a covenant for quiet enjoyment, and ouster after 
the death. 

For rent accrued after the death of the lessee, his executor 
or administrator is liable, even though the term may have been 
assigned, by the lessee. 

If the purchaser of real estate die without having paid the 
purchase-money, a devisee of the land may require the executor 
to pay for the land, out of the assets. And if the devisee him- 
self, pay the debt, the executor will be bound to reimburse him. 
And if, by reason of the delay of the executor, the contract be 
rescinded by the vendor, the executor will be bound to lay out 
the same amount in the purchase of other land for the devisee. 

If the legacy be, of a jewel, or of a piece of plate, and it be 
in pledge at the testator's death, the executor will be bound to 
redeem it for the legatee. 

In the case of an apprentice, the master's covenant for instruc- 
tion is strictly personal, and does not bind the executor or ad- 



LIABILITY OF EXECUTORS AND ADMINISTRATORS. 97 

ministrator. But the covenant for maintenance of the appren- 
tice remains in force, and is binding on the executor or admin- 
istrator. - 

For debts contracted by the wife, when single, the husband 
is liable only during coverture ; and if he die before the wife, 
leaving these debts unpaid, his executor or administrator will 
not be liable for them. 

LIABILITY OF THE EXECUTOR OR ADMINISTRATOR ON HIS OWN 

CONTRACTS. 

A promise by an executor or administrator, to pay a debt of 
the deceased, will not make him personally liable, unless there 
be a sufficient consideration to support the promise ; and unless 
the promise be in writing, agreeably to the statute of frauds. 
CI Dig. 254, sec. 1. 

An oral promise made before grant of administration, by one 
who afterwards becomes administrator, is not within the statute. 
If a man promise the 'widow of the intestate, that if she will 
permit him to be joined in the administration, he will make good 
all deficiency in the assets to discharge the debts, he will be 
bound by his engagement ; and it may be enforced against him 
in chancery, by the creditors of the intestate. 

If a creditor, at the request of the executor or administrator, 
forbear to sue him, this is a consideration sufficient to support a 
promise to pay de bonis propriis. 

Two executors made a promissory note in the following 
words : " As executors to the late T. T. we severally and 
jointly promise to pay N. C. the sum of £200 on demand, with 
lawful interest for the same :" on which it was held, that they 
were personally liable — because, interest being added, necessa- 
rily imported forbearance, and payment at a future day. 

If an executor or administrator promise in writing, that in 
consideration of having assets, he will pay a particular legacy 
or debt, this will bind him de bonis propriis. 

The words of our statute are, " unless the promise or agree- 
ment, or some memorandum or note thereof, shall be in writing, 
and signed by the party to be charged." The English statute 
in relation to the same matter requires, that the agreement shall 

10 



^ 



98 LIABILITY OF EXECUTORS AND ADMINISTRATORS. 

be ill writing, and says nothing of the promise. Under our 
statute, it appears to be sufficient, for the purpose of binding 
the executor or administrator, that the promise be in writing;, 
and that the consideration may be proved aliunde. 

[f, on arbitration, the executor or administrator submit, in 
general terms, in writing, to pay whatever shall be awarded ; 
and the award be, that he shall pay a certain sum, nothing hav- 
ing been said of assets either in the submission or the award ; 
he will be bound de bonis propriis. For the submission was^ 
in effect, an admission of assets. 

But a submission to arbitration may be so expressed, as not 
to subject the executor or administrator to personal liability. 

Executors and administrators carrying on the trade of the 
deceased, are personally liable on its contracts. But as our 
statute sanctions a direction in a will, that the estate devised, 
be kept together for distribution, at a future day, it is proper 
that the executor should not be held personally liable on con- 
tracts made by him as executor, in the proper business of the 
estate so kept together. 

And there are many instances, in which the executor or ad- 
ministrator is bound to carry on the business of the testator or 
intestate, so far as to complete the execution of his contracts, 
and to make a saving use of his materials. If a man under- 
take, for himself and his executors, to build a house, and die 
before it is finished; his executor will be bound to complete the 
work. If a bookseller undertake to publish a work, in parts, 
and die during the publication, the subscriber has a claim to be 
furnished with all the parts ; and the executor or administrator 
will be bound to complete the publication. If a man makes 
the half of a wheel-barrow, and dies, the executor or adminis- 
trator may finish it. In these, and the like cases, if the exec- 
utor or administrator contract, as executor, or, as administra- 
tor, it is unreasonable that he should be bound de bonis propriis. 

It is the general law, however, that an administrator cannot 
make a contract that will bind the estate ; and that he will be 
personally bound, on his contracts in relation to the estate. 2 
Po?i.. 33 Mc Elderly v. Chapman. 3 Port. 21, Harding y. 
Evans. 

But the estate of a deceased person stands chargeable with 



FUNERAL EXPENSES. TAXES. RESIGNATION. 99 

the expenses of settling it. This will include the proper costs 
of court, the publications required by law, and in a proper case, 
fees for professional aid of counsel. In these cases, the exec- 
utor or administrator, not acting on his own discretion, but 
obeying the directions of the law, is not personally liable. CL 
Dig. 191, sec. 1. 11 Al R. 1023, Reynolds admr. v. Rey- 
Tiolds distW. /' ' ' 

FUNERAL EXPENSES AND LAST ILLNESS. 

The estates of deceased persons, stand chargeable with their 
funeral expenses ; and they are a proper charge on executors 
and administrators, in that character. CI. Dig. 191, sec. 1. 

]f the executor or administrator have assets, he is personally 
liable for the expenses of the last illness; and of the funeral, 
in a style suited to the condition and estate of the deceased ; 
although he may not have directed them. 

. TAXES. 

The administrator or executor is bound to pay the taxes of 
the intestate or testator, and of the estate, out of the assets. 

Lands of deceased persons are to be assessed to the estate, 
for their taxes ; and the personal property of the estate may be 
distrained for taxes. Acts of 1847,/'. 14. 

RESIGNATION. 

An executor or administrator may resign, by writing to that 
effect, subscribed (signed,) and deUvered into the probate office. 
CL Dig. 222, sec. 9. 

An executor or administrator cannot, after his resignation, 
exonerate himself from his obligation to take care of the estate, 
until he show its delivery to his successor, and that he has left 
the property at the proper place. After his resignation, and 
before delivery of the property to his successor, the clandestine 
removal of it by a third person, will not absolve him from his 
obligation to account for it, unless he show further, that after 
his resignation, he took such care of the property, as a prudent 



100 • ^ ABATEMENT OF SUITS. . 

man would take of his own estate. 10 Al. R. 264, Gayle, 
adm'r. v. Elliott. 



.. ABATEMENT OF SUITS. 

Suits do not abate by the death of the plaintiff, or of the 
defendant, when the cause of action survives for or against the 
legal representative. CI. Dig. 313, sec. 1. 

The writ of ad quod damnum, may, on the death of the 
plaintiff, be revived on motion, by the executor or administra- 
tor. CI Dig. 314, sec. 5. 

Suits commenced by an administrator ad col., do not abate 
on the appointment of an administrator in chief; but may be 
carried on by the latter. And the rule is general, that suits 
commenced by, or against an executor or administrator, do not 
abate on his death, resignation, or removal ; but may be car- 
ried on, by or against his successor. CI. Dig. 222, sec. 8. 
Ih. 227, sec. 30. 3 Al. R. 568, Elliott, adm'x. v. Eslava. 

If either party to a suit shall die before judgment, and the 
executor or administrator shall be duly served with a sci.fa.^ 
or citation, fifteen days before the term of the court, and shall 
refuse or neglect to become a party to the suit ; the court may 
render judgment against the estate of the deceased, as if the 
executor or administrator had voluntarily made himself a party 
to the suit. CI. Dig. 313, sec. 1. 



PART IV. 



REMEDIES AT LAW FOR EXECUTORS AND 
ADMINISTRATORS. 

There are some cases, in which the executor or administra- 
tor has an interest in the chose in action, but cannot bring suit 
on it. If one of two partners die, the executor or adminis- 
trator of the deceased, cannot bring an action on a partner- 
ship debt. The surviving partner alone may sue ; and he is 
accountable to the executor or administrator, for the interest of 
the deceased partner. 

If the plaintiff sue as executor or administrator, it is not 
necessary, that the process state, that he sues in that character; 
but it should appear in the cause of action indorsed on the writ. 

If there are several executors or administrators, they must 
all be joined in bringing an action ; even though some of the 
executors are infants, or have refused the appointment. But 
if one of several sue alone, the defendant can avail himself of 
the omission, only by plea in abatement, either in an action ex 
contractu, or one ex delicto. 

If goods be taken out of the possession of one of several 
executors or administrators, he may sue alone, to recover them. 

When the assets of the estate are the consideration of a con- 
tract, the executor or administrator may sue in his representa- 
tive character. 

When the cause of action accrued before the death of the 
testator or intestate, suit can be brought by the executor or ad- 
ministrator, only in the representative character. But when 

10* 



102 REMEDIES AT LAW 

the cause of action has accrued subsequent to the death of the 
testator or intestate, the executor or administrator may sue, 
either in his representative, or in his individual character. 8 
Port. 346, Evans v. Gordon, (as to the first point.) 

A plaintiff cannot join in one action, a demand as executor 
or administrator, with a demand in his individual right. Such 
a misjoinder is a defect in substance ; and is ground for gen- 
eral demurrer, or for arrest of judgment, or reversal on writ of 
error. But if the money recovered on each demand will be 
assets, there is no misjoinder. A count on promises to the 
testator or intestate, may be joined with a count on an account 
stated with the plaintiff, as executor or administrator, concern- 
ing money due to the deceased, or concerning money due to 
the plaintiff, as executor or administrator ; or a count for 
money loaned by the plaintiff, as executor or administrator ; 
or a count for money had and received by the defendant, to 
the use of the plaintiff, as executor or administrator ; or a 
count for money paid by the plaintiff, as executor or adminis- 
trator, to the use of the defendant ; or a count for goods sold 
and delivered by the plaintiff, as executor or administrator ; or 
a count for materials furnished, and for work and labor done, 
\)y the plaintiff, as executor or administrator ; or a count on a 
bill of exchange, indorsed to the plaintiff, as executor or ad- 
ministrator ; or a count on a promissory note, made to him as 
executor or administrator. But it must be avowed in the 
declaration, that the right sued on in said last mentioned counts, 
accrued to the plaintiff in his representative character. 

When the plaintiff declares, as executor or administrator, on 
a cause of action which accrued in the life-time of the testator 
or intestate, and makes profert of his letters, the defendant can- 
not, at the trial, deny that the plaintiff is such executor or ad- 
ministrator, unless there be a plea of ne unques executor, or 
administrator. And without such plea, the plaintiff is not 
required to show that he is executor or administrator. But if 
the plaintiff, executor or administrator, declare on a cause of 
action arising after the death of the testator or intestate, mak- 
ing profert of his letters, the plea of the general issue does not 
admit the plaintiff's right to sue as executor or administrator; 
and it must be proved. 



FOR EXECUTORS AND ADMINISTRATORS. 103 

If the plaintiif declare, in trespass, or trover, or detinue, on 
his constructive possession as executor or administrator, the 
general issue being pleaded, he must, on the trial, show his title 
as executor or administrator. But if he has had actual posses- 
♦ sion of the chattel sued for, it will not be necessary for him to 
prove his title as executor or administrator. And in this case, 
his calling himself executor, or administrator, in his declara- 
tion, may be regarded as surplussage. 

In an action by a plaintiff, as executor, when it becomes 
necessary to prove his title as executor, he must exhibit a cer- 
tified copy of the probate, with his letters testamentary ; or a 
certified copy of the order appointing him. Or he may exhibit 
the record-book itself, containing an entry of the probate, and 
of his appointment. 

A certified copy of a will with the probate, is evidence of 
the validity of the will, and of the correctness of the probate. 
3 Port. 9, Darrington et at. v. Borland. 

The title of several plaintiffs, to sue as executors, is proved 
by the probate of the will appointing them all, and a grant of let- 
ters to one only. 

The title of the plaintiff", as administrator, may be proved, by 
exhibiting his letters of administration, or a certified copy of 
the order of appointment, or the original book containing the 
grant. 

The title of an administrator de bonis non to sue in that char- 
acter, is sufficiently proved, by showing his appointment as 
■ administrator de bonis non; vv^ithout showing the grant to an 
executor, or to a prior administrator. 

When his letters testamentary, or of administration, have 
been exhibited by the plaintiff", this evidence cannot be opposed, 
by showing, that another person was appointed executor ; or 
that the testator was insane ; or that the will, of which probate 
had been granted, was forged. These matters being within the 
jurisdiction, (exclusive,) of the orphans' court, cannot be col- 
laterally impeached. 

But under the plea of ne unqiies executor, or administrator , 
the defendant may show, that the orphans' court of the par- 
ticular county, under whose appointment the plaintiff" acted, 
had no jurisdiction ; that county not being the place of the 



104 REMEDIES AT LAW . • - 

residence of the testator or intestate, or the place of his pro- 
perty, as required by the statute. And under the same plea, it 
may be proved, that the supposed testator or intestate is alive ; 
or that the seal to the probate is forged ; or that the letters 
have been revoked. 

And the defendant may prove, that he has paid the debt sued 
for, to a supposed executor, who had gotten possession of a 
foro-ed will, on which he held a grant of letters testamentary, 
unrepealed at the time of payment. And this will be a good 
defence. But payment of the debt, under probate of a sup- 
posed will of a living person, will not be a good defence. In 
such case, the orphans' court has no jurisdiction ; and the pro- 
bate is a nullity. 

In a suit by the executor, against a legatee, for money due 
by the latter to the testator — the legatee cannot plead his legacy, 
as a set-ofF, before it has been assented to. 5 AL R. 24.5, 
Sorrelle's exrs. v. Sorrelle. 

ACTIONS AT LAW BETWEEN ADMINISTRATORS. 

When administration has been granted to two or more per- 
sons, on an intestate estate ; and one or more of them take all 
or the greater part of the estate, and refuse to pay the debts, 
..or the funeral expenses, or refuse to account with the other ad- 
ministrator, the administrator so aggrieved, may have an action 
of account against the administrator so wrongfully acting, and 
recover his proportionable part of the estate, as administrator. 
And an executor, being a residuary legatee, may have an action 
of account against his co-executor, to recover his part of the 
estate in the hands of the co-executor. CI. Dig. 226, sec. 29. 

An administrator de bonis non cannot maintain an action at 
law, against a former administrator, to recover money received 
by him during his administration, and not paid over. But he 
may maintain assumpsit against the former administrator, for 
money received by him after the termination of his administra- 
tion, and not paid over. 2 Port. 550, Chamberlain, admr. \. 
Bates, adfnr. 7 Al. R. 478, Salter v. Cain. 11 al. R. 872, 
Nolly V. Wilkinson, admr. de bonis non. 

An administrator de bonis non may maintain an action of 



BETWEEN EXECUTORS AND ADMINISTRATORS. 105 

trover, or detinue, or account, or on the case, against a former 
administrator, whose administration has been revoked, for such 
goods or chattels of the estate, as came to his possession, and 
have been withheld, wasted, detained, embezzled or misapplied 
by him. CI. Dig. 221, sec. 4. 

This statute does not, in terms, embrace executors or admin- 
istrators who may resign ; but the reason of the law extends 
equally to them. ' 

COSTS. 

It was the general rule of law, that in an action by an exec- 
utor or administrator, on a contract made with the testator or 
intestate, or on a wrong suffered in his time, the executor or 
administrator was not personally liable for costs : but that when 
the executor or administrator sues on a contract made with 
himself, or for a wrong done after the death of the testator or 
intestate, there might be a judgment against him for costs, de 
bonis propriis. Perhaps the supreme court of Alabama has 
established a different rule. In the case of Cliandler et al. v. 
Shehan, 7 Al. R. 251, and in the case of Hutchinson, ad-nir. v. 
Gamble, 12 Al. R. 36, it decided, that in a suit by an executor, 
the proper rule for ascertaining, that there shall be a judgment 
for costs de bonis testatoris, is, that the money, if recovered, 
will be assets. . ... 

REMEDIES AT LAW AGAINST EXECUTORS AND ADMINISTRATORS. 

No action at law can be commenced, or carried on, against 
an executor or administrator, and he is not subject to garnish- 
ment, until after six months from the time of proving the will, 
or the first grant of administration. CI. Dig. 192, sec. 2. 
Aik Dig. 3 Port. 105, Presnall v. Mahry. 

Executors and administrators may be sued as such, in the 
courts of the county in which their letters were granted ; and 
service of process in such suit, made in any county, will be 
sufficient. CI. Dig. 228, sec. 40. 

An action of debt will not lie against an executor or admin- 
istrator, on the simple contract of the deceased. Assumpsit 



106 ■ REMEDIES AT LAW . ■ 

is the proper remedy. If the action of debt be brought, the 
objection can be raised only by demurrer ; and the error is 
cured by verdict. 

I'here are cases, in which the legatee cannot coerce the pay- 
ment of his legacy, immediately after the lapse of eighteen 
months from the grant of letters testamentary. 8 Port. 380, 
Leavens v. Butler, et ux. 

A legatee may recover his legacy, by an action at law. 
CI. Dig. 227, sec. 29. 

But the assent of the executor is necessary, to perfect his 
title. The executor has eighteen months to ascertain the in- 
debtedness of the estate ; and he is not bound to give his assent 
before the lapse of that time. 

The legatee may maintain an action at law, for his legacy, 
without a previous demand, when there has been an express 
promise to pay it. 9 Port. 552. Gauze and wife v. Hughs, 
hy guardian. 

In an' action against executors or administrators, all must be 
joined, who have administered ; but it is not necessary to no- 
tice those who are not included in the letters. 

If a married woman be executrix or administratrix, in an ac- 
tion against her, the husband must be joined. 

If one of two executors or administrators die, any action to 
which they had been liable, will remain against the survivor. 
And the executor of the deceased executor cannot be joined, un- 
less he has in fact administered on the will of the first testator. 

An action against a resident-administrator or executor, and 
one who is non-resident, may be discontinued as to the latter. 
And the non-residence of one of several executors or adminis- 
trators, is a sufficient reason for not joining him as a defendant- 
Process must be served on all who reside in the state. 9 Al. 
R. 504, English <Sf English v. Bi ovm. 8 Port. 579, Williams 
^ Iv}&y V. Sims et al. 

A plaintiff cannot, in one action, charge the defendant as ex- 
ecutor or administrator, and also on his own liability; and the 
objection to such misjoinder will be good on general demurrer, 
or on arrest of judgment. A count for money had and receiv- 
ed by the defendant, as executor, for the plaintiff's use, charges 
the defendant on his individual liability, and leads to a judgment 



AGAINST EXECUTORS AND ADMINISTRATORS. 107 

dz bonis propriis, and it cannot be joined to a count on a prom- 
ise by the testator. 

If a testator make his creditor and another, his executors, and 
the creditor does not accept the appointment, and does not act 
as executor, he may maintain an action against the executor 
who accepts and acts. 

An executor or administrator is not required to plead special- 
ly, but may give special matter in evidence, under the general 
issue. CI Dig. 227 sec. 32. 

The securities of an executor or administrator are not ren- 
dered liable beyoiid the amount of the assets, by the omission 
to plead, or mistake in pleading, of the executor or administra- 
tor. CI. Dig. 228, sec. 34. 

In an action against an executor or administrator, he may 
plead any matter, which the testator or intestate may have 
pleaded, and he may plead ne unques executor, or m unques ad- 
minislrator, or that no assets have come to his hands. 

When the estate has been declared insolvent, the executor or 
administrator, sued at law, in addition to his other pleas, may 
plead the decree ot insolvency. And if any of the other issues 
made by the parties, be ibund for the plaintiff, and on this last 
plea the issue be found for the defendant, a judgment shall be 
rendered to the effect that the plaintiff is entitled to the sutn of 
money found to be due to him, bat that it appearing that the 
estate has been declared Jnsolvent, no execution shall issue 
therefor. And this judgment ought to be certified to the or- 
phans' court, and be filed by the plaintiff, with the clerk of the 
orphans' court, with the oath required by the statute regulating 
the settlement of insolvent estates. CI. Dig. 195, sec. 13. 

In a suit in which there is an ancillary attachment, if, after 

.the death of the defendant, his executor or administrator sustain 

a plea of the declaration of the insolvency of the estate, the 

attachment lien will be lost. 3 Al. R. 398, Hale adtiir. v. 

Ciinunings <^- Spyker. 

In an action by an executor or administrator, and a plea of 
set-off, of an amount larger than the debt sued tor, a replication 
that the estate has been declared insolvent, is not good, and if a 
verdict for a balance be found for defendant, on proof that the 
estate has been declared insolvent, the judgment ought to be 



108 REMEDIES AT LAW , 

certified to the orphan's court, as a claim against the estate. 7 
AL R. 662,Godbold v. Andress. 

In an action by an executor or administrator, a demand due 
by the testator or intestate, at the time of his death, will be 
allowed as a set-off, even though the estate has been declared 
insolvent. 3 St. 151, PerrineY. Warren, adrnr. {Quere.) 

The plea of ne ungues executor, or ne ungues administrator, 
denies only that the defendant is the legal representative of the 
deceased. When, in assumpsit against two executors, there 
was a plea by both, of ne ungues executor, and it appeared in 
evidence that one of the defendants was executor, and that the 
other was not, it was held, that in counts on promises by the 
testator, the plaintiff might take a verdict against the former 
defendant alone, the latter being discharged, but that on the 
counts which laid the promises by the defendants, as executors, 
the plaintiff must fail. And in an action against several, as ex- 
ecutors, on promises by the testator, one of the defendants 
pleading separately, ne ungues executor, the plaintiff may enter 
a nolle prosegui as to him, and proceed against the others. 

In an action against the executor or administrator, for rent, if 
the whole rent accrued in the life of the testator or intestate, the 
action in the form of debt, must be in the detinet only, and the 
judgment will be, de bonis testatoris, or intestatis. But for rent 
accrued after the death, if the executor or administrator have 
entered, he may be sued in his repi;esentative character, or in 
his individual character, m respect of his reception of the profits 
of the land ; in the latter case it being stated in general terms, 
that the estate of the lessee in the premises, lawfully came to 
the defendant. 

In general, the executor or administrator may be sued on all 
contracts made by himself, although they be in relation to the 
business of the estate, and for its benefit. But there are cases 
in which he may be sued in his representative character, on 
promises made by him in that character, and on which he will 
be liable no further than on promises by the testator. 

A declaration averring an account stated between the plain- 
tiff and the defendant as executor, and that in consideration 
thereof the defendant, as executor, promised to pay the balance, 
will lead to a judgment de bonis testatoris. 



AGAINST EXECUTORS AND ADMINISTRATORS. 109 

If the declaration aver that the defendant, as executor, was 
indebted to the plaintiff in a certain sum, for so much money 
paid by the plaintiff to the use of the defendant, as executor, and 
that in consideration thereof, the defendant, as executor, prom- 
ised to pay, the judgment should be de bonis testatoris. 

For the proper costs incurred in the settlement of the estate, 
and for the expenses of the publications required by law, the ex- 
' ecutor or administrator can be sued only in the representative 
character. These do not rest on contracts within the discre- 
tion of the executor or administrator. They are the contracts 
of the law, prescribed for the benefit of those interested in the 
estate, and they must be satisfied out of the assets. 

If the defendant pleads, that before the issuance of the writ, 
he had resigned, or that he had been removed, he ought further 
to allege in his plea, that he had fully administered all the goods 
that had come to his hands, or that he had delivered to his suc- 
cessor, all that he had not administered. 8 Port. 343, Driver 
V. Riddle. 

Under a plesiofplene administravit, the executor or adminis- 
trator may show, that he has exhausted all the assets, in the ex- 
penses of the last sickness, and of the funeral, and in the rea- 
sonable charges for collecting the debts due to the deceased. 
And under this plea nothing else can be proved in Alabama 
except when this plea is connected with the plea of resignation 
or removal, as before stated. 

On the plea of plene administravit, if the issue be found 
against the defendant, the judgment will be, de bonis testatoris, 
et si non, &c., and for the costs, de bonis propriis. But the 
judgment de bonis propriis, should not be for more than the 
assets remaining in his hands, over and above what he has 
properly accounted for. 

When several executors or administrators plead plene ad- 
ministravit, severally, and the jury find that one only has assets, 
the judgment should be rendered against him only, and the other 
defendants are to be discharged. 

If the executor or administrator plead non assumpsit, or other 
general issue, and no other plea, and it be found against him, he 
will be liable for costs de bonis propriis, although he may not 

11 



110 . REMEDIES AT LAW 

have known the plea to be false. He is charged with the ex- 
pense of the htigation, which his plea has caused. But if, in 
addition to the plea of the general issue, he plead any other 
matter which covers the whole cause of action, as ne ungues 
executor, and such plea be sustained by the verdict, he will be 
entitled to a general judgment, and the general costs of the ac- 
tion, even though the general issue may have been found against 
him. . , • I. 

On the plea of plene admiiiistravit, the plaintiff may confess 
the plea, and take judgment quaiido acciderint ; a judgment to 
be satisfied out of any assets that might thereafter come to the 
hands of the executor or administrator. But if the plaintiff take 
issue on this plea, and it be found against him, he cannot have 
judgment quando acciderint. 

The executor or administrator may, when the estate is sol- 
vent, plead that he has retained a certain sum in payment of a 
debt due to himself, or he may give it in evidence under the 
general issue. But in an action at law against him, he cannot 
avail himself of his right to retain, as his defence, for an equita- 
ble demand, which cannot be submitted to a jury, and which 
the plaintiff cannot controvert. 

When the action can be maintained against the executor or 
administrator, in his representative character only, and he pleads 
any plea (except a release to himself,) admitting his representa- 
tive character, the judgment against him will be, that the plain- 
tiff recover the debt and costs, to be levied out of the assets of 
the testator or intestate, if the defendant have so much ; but if 
not, then the costs io be levied de bojiis propriis. 

But where the defendant pleads ne ungues executor, or ne un- 
gues administrator, or a release to himself, and it be found 
agamst him, the judgment is, that the plaintiff recover the debt 
and costs, in the first place, de bonis testatoris, or intestatis, and 
si non, de bonis propriis. There does not appear to be a suffi- 
cient reason for the ditierence between this judgment and that 
in the preceding case, and the ultimate responsibility of the ex- 
ecutor or administrator is the same in both cases. 

When the judgment ought to be, de bonis testatoris, or de 
bonis intestatis, and it is entered de bonis propriis, this is a cler- 



AGAINST EXECUTORS AND ADMINISTRATORS. Ill 

i^al misprision, amendable on motion, or on error, at plaintiff's 
costs. 5 Ai. R. 221, Yarhorough' s ex' rs. v. Scott's exrs. 

In an action by a creditor, it is no defence on the part of the 
executor or administrator, that settlement and distribution have 
been made, under an order of the orphans' court. 5 Al. R. 13, 
Tlirash v. Sumwalt. 11 Al. R. 104, Dear et al. v. Portis, 
Judge, <^^. 

SCIRE FIERI INaUIRY AND DEBT SUGGESTING A DEVASTAVIT, 

A judgment de bonis testatoris, may be enforced by the scire 
fieri inquiry. In this writ, the plaintiff recites the judgment, 
tho, fieri facias, and the return of nulla bona, and suggests a de- 
vastavit, and notice is given to the defendant to show cause 
why the plaintiff should not have execution de bonis propriis. 

But the usual proceeding is, an action of debt on the judg- 
ment, suggesting a devastavit. Afi. fa. is issued on the judg- 
ment already obtained, on which the sheriff returns, no proper- 
ty, and on these the action is brought. On the trial, the record 
of the judgment, and the fi. fa. with the return on it, will make 
out the case. 

In an action suggesting a devastavit, on a judgment rendered 
against an administrator within eighteen months after grant of 
administration, with execution returned " no property," it is a 
good defence that after rendition of the judgment, the estate has 
been declared insolvent. 16 Al. R. 339, Powe <^ Smith v. Ster- 
rett, Judge, ^c. 

ACTIONS ON THE BONDS OF EXECUTORS AND ADMINISTRATORS. 

An action on the bond of an executor or administrator must 
be in the name and at the cost of the party injured by the 
breach. And the bond does not become inoperative on a re- 
covery, but may be prosecuted from time to time, against any 
or all of the obligors, by any party who has been injured. CI. 
Dig. 221, sec. 3. 

In an action on the bond, it may be assigned as a breach, 
that the executor or administrator has not made a true and per- 
fect inventory, or that he has not rendered a just and true ac- 
count, or that he has not paid the debts, or that he has not paid 
the legacies. :^ 



112 : LIMITATIONS. 

The statute which permits the plaintiff to testify in an action 
on an account, for a sum not exceeding one hundred dollars, 
does not apply to executors or administrators. CI. Dig. 342, 
sec. 161. 

The exemption of executors or administrators from suit until 
six months after probate, or grant of administration, does not 
apply to the action of detinue ; and in detinue, it is no defence 
that the detention is by the defendant, as executor or adminis- 
trator. 

One sued in detinue, may defend on his title as executor or 
administrator. 11 Al. R. 966, Gamble v. Gamble's admr. 

In an action of detinue revived against the administrator, 
after the death of the original defendant, judgment cannot be 
rendered against the defendant, unless it appear that the thing 
sued for was in the possession of the original defendant, at the 
commencement of the suit, and that it has since come to the 
the hands of the administrator, as assets. 12 Al. R. 684, Easly, 
adm'r. v. Boyd. 

BILLS OF EXCHANGE AND NEGOTIABLE NOTES. 

If, when a bill of exchange, or a negotiable note becomes due, 
and is dishonored, the drawer or indorser is dead, notice ought 
to be given to his executor or administrator. When the drawee 
or acceptor of the bill, or the maker of the note is dead, the bill 
or note ought to be presented to the executor or administrator. 
If there is no representative, the holder should present it at the 
place of residence of the deceased. 

GENERAL STATUTE OF LIMITATIONS. 

In an action against an executor or administrator, the period 
of six months immediately following the probate, or grant of ad- 
ministration, is not computed, under the statute of limitations. 
2 Port. 44, Hutchinson exr. v. Tolls. 3 Fort. 247, Hoitpt v. 
admWs. of Shields. 12 Al. R. 802, Posey <^ Coffee, ex'rs. v. The 
Decatur Bank. 

When the statute of limitations commences running, it is not 
suspended by the death of either party. 3 St. 172, Johnson, 
adm'r. v. Wren. 



LIMITATIONS. NON-CLAIM. 113 

A promise by a sole executor or administrator, will take the 
case out of the statute of limitations ; or if one alone, of several, 
be sued, his promise will have the same effect, but in general 
the promise of one of several executors or administrators, will 
not remove the bar of the statute. 9 Al. R. 502, Hall, Wicks 
^ Co. V. Darrington. 3 Al. R. 599, Carruthers ^ Hinkle v. 
admr. of Mardis. 

An administrator or executor may, in general, retain money 
from the assets, in payment of a debt due to himself, although 
time may have elapsed sufficient to raise the bar of the statute. 
But when he petitions for leave to sell the real estate, in order to 
pay debts, the heir may resist the application, by showing that 
such debts are barred by the statute of limitations. 7 Al. R. 
304, distrs. of Knight v. Godhold. 2 Al. R. 660, Heirs of 
Bond V. Smith, admr. 

When suit is brought by the executor, on promises to the 
testator, and the defendant pleads the statute of limitations, the 
plaintiff cannot reply, a promise to himself; nor can he give 
such promise in evidence. 

i 

STATUTE OF NON-CLAIM. 

Claims against an estate must be presented to the executor 
or administrator, or be filed in the probate office, within eigh- 
teen months after grant of letters testamentary, or of adminis- 
tration, or wdthin eighteen months after their accrual, and all 
claims not presented or filed within that time, are forever bar- 
red from recovery. CI Dig. 195, sec. 17. 6 Port. 32, Mc- 
Broom et al. v. The Governor. 12 Al. R. 755, Branch Bank 
V. Hawkins, adnir. Act of 1850. 

This statute of non-claim does not apply to debts contracted 
out of the state, nor to claims of heirs or legatees, claiming as 
such, nor to claimants who may be under age, or femes covert, 
nor to persons insane, or non compos mentis. CI. Dig. 195, 
sec. 17. ", ; ■ 

It is not necessary that a claim be presented to an adminis- 
trator ad. col., and the presentation of a claim to such adminis- 
tration, will not satisfy the requisition of the law. 14 Al. R. 
Erwin, adm'x. v. Branch Bank at Mobile. 

11^ ••, . •• .; 



114 " ' NON-CLAIM. 

If an administrator or executor shall fail to give to creditors 
the notice required by law, to present their claims, the time to 
present or file their claims is extended to eighteen months after 
such notice shall have been given. Act of 1850. 

Presentment of a claim to one executor or administrator, is 
sufficient. 3 St. 288, Ac?^e v. Ross, admr. 

It is sufficient to present the claim, without exhibiting any 
proof of its justness. ^ Al. R. 283, Jones v. Pharr. 

The commencement and continued prosecution of a suit, 
within the eighteen months, is a sufficient presentation of the 
claim, under the statute. But service of a writ on the adminis- 
trator, afterwards abandoned, is not a sufficient presentation of 
a claim. 1 1 Al. R. 203, Hunly's ex'r. v. Shuford. 2 >S'^. 448, 
Bigger, adm'r. v. Hutchings <^ Smith. 10 Al. R. 970, Boggs' 
adm'rs. v. Branch Bank at Mobile. 

If 'the defendant die during the pendency of a suit, and the 
suit is not revived within eighteen months after the grant of 
letters testamentary or of administration, and the claim is not 
in the mean time presented to the executor or administrator, it 
is barred. 8 Al. R. 574, S. <^ E. Travis v. Tartt. 10 Al. R. 
17, Jones' ex'rs. v. Lightfoot. 

Presentment of a note does not suffice for presentment ^of an 
account sued on in the same action with the note, the suit 
having failed. 10 Al. R. 944, Badger ^ Steele v. Kelly, adm'r. 

The statute begins to run from the accrual of the claim, and 
not from the accrual of the cause of action. 5 Al. R. 610, 
King <^ Barnes, adm'rs. v. Mosely. 

Judgments are claims subject to the statute of non-claim. 4 
St. <^' Port. 52, Ready adm'r. v. Thompson, adm'r. 5 Al. R. 
490, Gray's adm'r. v. White. 

To a plea of the statute of non-claim, the plaintiff may reply 
that the debt was contracted at some place out of the state. 3 
Al. R. 869, Sanford, adm'r. v. Wicks. 

A creditor, or any other person interested in the distribution, 
may insist on the statute of non-claim. 6 Port. 32, McBroom 
et ol. V. Governor. 

Knowledge of the claim by the executor or administrator, is 
no excuse for not presenting it within the eighteen months. 
10 Al. R. 17, Jones' ex'rs. v. Lightfoot. 



NON-CLAIM. 115 

The absence of the administrator from the state, will not pre- 
vent the bar of the statute of non-claim, after it has commenced 
running, 12 A/. R. 741, Branch Bank at Decatur v. Donelson, 
admx. 

Notice of the dishonor of a note, given to an administrator 
before he has qualified as such, is not a sufficient presentment to 
the administrator. 12 Al. R. 671, Branch Bank at Mobile v. 
Hallett 4- Walker. 

A replication that the executor or administrator did not give 
due notice, by publication, to creditors to present their claims, 
is not sufficient, b Al. R. 13, Thrash v. Sumwalt. (The case 
of Evans, adm'r. v. Norris, 1 Al. R. 511, overruled.) 

On a plea of non-claim, under the statute, the burthen of proof 
is on the plaintiff, to show a presentment within eighteen 
months. 5 Al. R. 13, Thrash v. Sumwalt. 

A promise by an administrator to pay a debt which had not 
been presented within the eighteen months, does not bind him. 
12 Al. R. 753, Br. Bank v. Hawkins, admr. 

After an estate has been declared insolvent, claims are not to 
be presented to the executor or administrator ; but are to be 
filed in the clerk's office. CI. Dig. 195, sec. 15. 

When the principal debtor is dead, and the claim has not 
been presented to his executor or administrator within the 
eighteen months, this omission is no defence to one who is 
surety on the debt. 8 Al. R. 580, Hooks and Wright v. Br. 
Bank at Mobile. 

The omission of a creditor to present his claim within the 
eighteen months, is no defence to the principal debtor, against 
a surety who has paid the debt. lb. 

A mortgagee does not lose his lien, by failing to present his 
claim within the eighteen months. 1 Al. R. 708, Doe, ex dem. 
DuvaVs heirs v. McLoskey. 2 Al. R. 331, Inge et al. v. 
Boardman. 

A written acknowledgment, by an executor, that a claim has 
been presented, made during the administration of one who 
afterwards resigned, is evidence after the resignation, against 
the successor. ^ 






116 REMEDIES IN CHANCERY i 

REMEDIES IN CHANCERY, FOR EXECUTORS AND ADMINISTRATORS. 

An executor or administrator succeeds to all the equitable 
rights of the testator or intestate ; and he may enforce them by 
the usual remedies in equity. 

If a suit in chancery survives in favor of the personal repre- 
sentative of a deceased complainant, the executor or adminis- 
trator, instead of resorting to a bill of revivor, may carry it on, 
by sci. fa.; which being served on the defendant, the register 
may enter an order of revival, unless cause be shown to the 
contrary, by plea filed with the register, within thirty days after 
service of the subpoena. CL Dig. 613, sec. 15. 

An executor or administrator may file a bill before grant of 
letters testamentary, or of administration ; and a subsequent 
grant of letters, made before the hearing, will sustain the bill. 
But the bill must aver, that the complainant has obtained letters 
testamentary, or of administration. 

It is said, that when there are several executors, (or adminis- 
trators,) they must all of them join in the bill, though one of 
them be an infant. But where there are several executors ap- 
pointed in the will, of whom only a part have taken out letters 
testamentary, these alone may file the bill, without noticing the 
others. 

Jt has been held, that in a suit by A, as administrator of B, the 
letters of administration are not prima facie evidence of the 
death of B ; but that the fact must be proved by interrogato- 
ries. [Quere) 

REMEDIES IN CHANCERY, AGAINST EXECUTORS AND ADMINISTRA- 
TORS. 

An executor or administrator is liable to all equitable de- 
mands, in relation to the personal property, which existed 
against the deceased, at the time of his death. 

In a court of chancery, an executor or administrator is, in 
general, considered as a trustee ; and that court compels him 
to discharge the trust, in conformity with the will, or with the 
provisions of the law. 

A court of equity will entertain a bill against the executor, 



AGAINST EXECUTORS AND ADMINISTRATORS. 117 

by a legatee, for his legacy ; and against the administrator, by 
a distributee, for his distributive share : and it will compel the 
executor or administrator to set forth an account of the assets? 
and of his disposal of them. 8 Port. 380, Leavens v. Butler 
et ux. 

A legatee may sue in chancery, either for himself alone, or in 
behalf of himself and other legatees. But in a suit by a single 
legatee for his own legacy, unless the executor admit assets for 
the payment of the legacy ; and thereby give sufficient grounds 
for a decree in favor of this particular legatee, — the court will 
direct a general account of all the legacies ; and payment of the 
particular legacy, rateably with the other legacies, if there be a 
deficiency of assets. 

In a proper case, an executor or administrator, and the sure- 
ties, may be sued in chancery, without a judgment having been 
rendered on the demand, at law. 9 Port. 967, Moore, et al. v. 
Armstrong, et al. 

The executor or administrator of a former one, can be sued 
only in chancery, for the devastavit of him whom he represents. 
3 Al. R. 670, Taliaferro, admr. v. Bassett and Wife. 

Chancery will not, on a devastavit, decree a sale of land in 
possession of heirs or devisees, unless the executor or adminis- 
trator, and his sureties, are insolvent; and all remedy against 
them at law, has been exhausted. 3 Port. 10, Darrington, et 
al. V. Borland. ' 

And chancery will not subject such personal property as can- 
not be reached by execution, until there has been a judgment, 
and a return of nulla bona. 3 Port. 470, Morgan, exr. v. 
Crahh. 

When the defendant in chancery dies, during the pendency of 
the suit, and it survives against his representative, it is not 
necessary to use a bill of revivor. On application to the regis- 
ter, the complainant may obtain a sci. fa., directed to the exec- 
utor or administrator ; on service of which, the register must 
enter an order of revival ; unless sufficient cause to the contrary 
be shown, by plea filed with the register, within thirty days after 
service of the sci. fa. CI. Dig. 613, sec. 15. 

When a defendant pleads to a bill, and dies before decision 
on the plea, his executor or administrator may plead de novo. 



118 REMEDIES IN CHANCERY. 

All of the executors who have acted, must be joined in a suit 
against the estate, even though some of them are infants ; and 
all the administrators must be joined as defendants. But the 
absence of any of them from the state, is a sufficient reason for 
omitting him. 

In a bill against a married woman, executrix or administra- 
trix, her husband must be joined with her. 

A writ of ne exeat may be obtained against an executor or 
administrator, under such circumstances as would authorize the 
issuance of this writ against other defendants. 

In a strong case of misconduct, waste, or improper disposition 
of the assets, by the executor or administrator, a court of chan- 
cery will appoint a receiver, and coerce the delivery of all the 
assets to him. .; . 

When an administrator appointed in another state, removes 
to this, bringing with him the property of the estate, a court of 
chancery may, on the bill of a distributee, prevent a wrongful 
sale ; and if no settlement has been made by the foreign probate 
court, the court of chancery may ascertain the amount of as- 
sets subject to distribution, and make a decree in favor of the 
distributee, for his share. 5 Al. R. 523, Calhoun per proch. 
am. V. King, et al. 

An admission of assets by an executor or administrator, can- 
not be retracted, unless the admission be founded in mistake 
clearly established. 

In chancery, costs are awarded, in the discretion of the 
court, as may appear reasonable and just. 

It is a general rule, that executors and administrators who 
conduct themselves fairly, are not to be made personally liable 
for costs. But when tlie suit is occasioned by the negligence 
or delinquency of the executor or administrator, he is not allow- 
ed to pay the costs out of the assets ; and they are made a per- 
sonal charge on him. 

In relation to the payment of money into the court of chan- 
cery, by the executor or administrator, the general rule is, that 
if the executor or administrator admit that he has a balance in 
his hands, and the complainant alone is entitled to it, or the 
complainant has such an interest with others, as will give him 
a fair claim to have the monev secured ; then the executor or 



REMEDIES IN THE PROBATE COURT. 119' 

administrator will be ordered to pay it forthwith, into court. 
And he may be required to deposit papers and writings of the 
estate, in the office of the register, for the benefit of parties 
interested. 

JURIES. 

A jury may be forthwith summoned and impanneled, to try 
any matter depending before the probate court, on any return- 
day, whenever it shall be necessary to have such trial. CI. 
Dig. 303, sec. 32. 

Except in case of a contested will, or where there is a real 
doubt in relation to a fact, requiring cross-examination of wit- 
nesses to elicit the truth, and except in issues specially provided 
for by law, the probate court has no authority to impannel a 
jury ; and the testimony on an issue submitted to a jury, if not 
in writing, should be spread on the record, to enable the appel- 
late court to judge of the propriety of the issue having been 
submitted to a jury. Except in the cases above enumerated, 
the judge of probate may refuse to impannel a jury ; and his 
refusal to call in a jury, under the act of 1821, (C/. Dig. 302, 
sec. 2,) is not error. 9 A. R. 330, Willis, adm'r, v. Heirs of 
Willis. lb. 499, Brazeale'^s ad/nir. v. BrazeaWs distr^s. lb. 
895, Harjis v. Martin. 11 Al. R. 1023, Reynold's adm'r. y. 
Reynold'' s dist'r. 9 Al. R. 615, Cunningham and Wife v. Pool. 
16 Al. R. 257, Savage, guardian y. Dickson. 

The question, whether the executor or administrator has 
used the funds of the estate, for his individual purposes, so as to 
subject him to the payment of interest, may be tried by a jury 
impanneled for that purpose, if the judge shall deem it neces- 
sary; and this question must be tried by a jury, if either party 
request it. CI. Dig. 198, sec. 28. 

The validity of a will being questioned in the probate court, 
a jury may be summoned and impanneled, to try such issues, 
or enquire into such facts, as may be submitted to them. CI. 
Dig. 304, sec. 35. 

Evidence of a will, lost or destroyed, may be submitted to a 
jury. 3 Poj't. 51, Apperson v. Cottrell. 

Evidence of a will, made and duly executed, and which has 



120 REMEDIES IN THE PROBATE COURT. 

been destroyed by the testator, in a fit of insanity, may be sub- 
mitted to a jury. Ih. 

The allegation of the insolvency of an estate, may be sub- 
mitted to a jury. CI. Dig. 192, sec. 4. 

The validity of the claim of a creditor against an insolvent 
estate, may be tried by a jury. CI. Dig. 194, sec. 11. 

A jury of bystanders may be summoned to carry into effect 
an attachment in the probate court. CI. Dig. 226, sec. 28. 

The probate court may set aside the verdict of a jury, at 
the term at which it was rendered, but not afterwards. 8 Al. 
R. 601, Saukey's exWs. v. Saukey's dist's. 

When an issue has been submitted to a jury, in the probate 
court, an appellate CQurt has no authority to enquire into the 
legality of any evidence which may have been exhibited to the 
jury, or of any charge which may have been given by the court 
below, 9 AL R. 330, Willis admr. v. Heirs of Willis. 

RETURN OF ACCOUNT AND INVENTORY. 

From the statute, (CI. Dig. 229, sec. 41,) which directs the 
course of proceeding, " when it shall be necessary for any ex- 
ecutor, administrator, or guardian, to make annual or final set- 
tlements," it might be inferred, that executors or administrators 
may be required to make annual, as well as final settlements. 

On final settlement, partial settlements previously made shall 
be considered only diS, prima facie correct, and subject to cor- 
rection, either in law or fact. It is not required that notice of 
partial or annual settlements be given by publication, unless 
some of the heirs or legatees reside out of the state. Act of 
1850, sec. 28. 

If an executor or administrator has failed to file an inventory, 
within three months after grant of letters, as required by law, 
on the application of a legatee, or of one of the next of kin, or 
of a creditor, the probate court will cite him, and compel him to 
perform this duty. 

At the instance of a creditor, an executor or administrator 
may be required to exhibit his account in the probate court ; 
and a citation will issue for this purpose. But the creditor is 
not permitted to contest the items ; and he cannot obtain a de- 



M • 



REMEDIES IN THE PROBATE COURT. 121 

cree. The proceeding serves only as a bill for discovery in 
chancery. 

DISTRIBUTION. 

The administrator is, in general, bound to make distribution, 
after the lapse of eighteen months, from the grant of adminis- 
tration ; but before he can be compelled to make distribution, 
the distributee must give bond with security, conditioned to 
refund a due proportion, for the payment of any debts or de- 
mands which may afterwards appear against the estate, and of 
the acts attendant on the recovery of such debts or demands. 
But no distributee can be required to give the refunding bond, 
for his distributive share, after a final settlement by the admin- 
istrator. CL Dig. 196, sec. 23. 9 Al. R. 470, Taylor and 
Wife V. Reese, adnHr. 

There is some obscurity in the law, as stated in the preceding 
paragraph. Is the refunding bond to be required of the distrib- 
utee, in those cases only, in which the administrator pays to the 
distributee, his distributive share, before the lapse of the eight- 
een months ? 

Property not bequeathed, there being a will, is to be distrib- 
uted, as in case of intestacy. CI. Dig. 597, sec. 7. 

Within three months after an estate has been represented to 
be solvent, the judge of probate ought to appoint five commis- 
sioners ; who, or a majority of whom, shall, wdthin six months 
after their appointment, under oath, make division and distribu- 
tion of such estate, among the legatees or distributees of the 
estate ; in all cases reserving to the widow, her dower. This 
division and distribution must be reduced to writing, and be 
signed by the commissioners, and be certified by the magistrate 
before whom the commissioners shall have been sworn ; and be 
returned to the office of the probate court ; and be recorded. 
But if the division and distribution cannot be effected equitably, 
and without manifest injury to the legatees or distributees, the 
estate must be disposed of at public sale, in order to make dis- 
tribution of the money arising from such sale. CI. Dig. 196, 
sec. 22. 

If property be omitted from the inventory, under an honest 
claim of right by the administrator ; but it is found to be a part 
. 12 



122 REMEDIES IN THE PROBATE COURT. 

of the estate ; the administrator is not to be charged with its 
value ; but such property must be brought into distribution. 11 
Al. R. 1023, Reynold's adirCr. v. Reynold's distr. 

Notes belonging to the estate, ought not to be included in a 
distribution, except by consent, and when all the parties are of 
mature age. In general, they ought to remain in the hands of 
the administrator, for collection. Ih. 

The statute above-mentioned, (CI, Dig. 196, sec. 22,) requir- 
ing the judge to appoint commissioners to make distribution, is 
not imperative on him ; and he is to appoint commissioners for 
distribution, only when he believes the estate to be in a condi- 
tion to be distributed. 11 AL R. 1023, Reynold's adrn'r. v. 

Reynold's distr. 

It may be inferred from the same statute, that if the estate ap- 
pear to be solvent, the executor or administrator is bound to re- 
port it, as solvent, to the probate court, immediately after the 
lapse of the eighteen months from the grant of administration. 

All business in relation to the settlement and distribution of 
estates, may be heard and determined at any of the terms of 
the probate court. C/. Dz^. 300, 5ec. 19. 

A previous order of the probate court, for the sale of personal 
property, is no bar, on an application for distribution. 9 Al. R. 
470, Harrison v. Harrison et al. 

In making distribution, when an equal distribution cannot be 
made, of the property itself; and the distributees, or a part of 
them, will not consent, or are incapable of consenting to a sale j 
the administrator should obtain an order from the probate 
court, for making sale of so much of the property, as may be 
necessary for an equal distribution. 8 Port. 507, Teat v. Lee, 
admW. 

The report of distribution, made by the commissioners ap- 
pointed to make distribution, is subject to exception and revi- 
sion; and until its confirmation by the court, the final order for 
delivery of the property to the distributees, should not be made. 
9 Al. R. 470, Harrison v. Harrison, et al. 



REMEDIES IN THE PROBATE COURT. , 123 



SETTLEMENT, ON SOLVENT ESTATES. 

A legatee, or one of the next of kin, desirous of bringing an 
executor or administrator to settlement in the probate court, 
may, after the lapse of eighteen months from grant of letters 
testamentary, or of administration, present his petition for this 
purpose, to the judge of probate. The petition should be in 
writing, and should propound the interest of the petitioner, as 
legatee, or next of kin, to the deceased. When the executor 
or administrator appears, if he contests the right of the appli- 
cant, the latter must prove, that he is a legatee, or one of the 
next of kin. 

The interest of a distributee of an estate, may be assigned ; 
and the assignee may proceed in his own name, to procure a 
settlement in the probate court. 8 AL R. 552, Graka??i, at al. 
V. Abercrombie, et al. 

On this application, a citation must issue to the executor or 
administrator, requiring him, on or before a given day therein 
appointed, to file in the probate office, an account between 
himself and the estate of which he has charge ; or show cause 
to the contrary thereof. In the account, he must charge him- 
self with all, wherewith he is by law chargeable ; and credit 
himself with all, to which he is of right entitled as credits. And 
he must file with his account, such vouchers and written evi- 
dence as he may rely on, to sustain his credit. CI. Dig. 229, 
sec. 41. 

The executor or administrator, on filing his account and 
vouchers, must file also, a statement under oath, showing who 
are the legatees or distributees ; specifying therein, which of 
them are infants, /e?7ie,^ covert, or non compos mentis. He and 
his sureties on his official bond will be held liable for all damage 
arising from the omission of this duty. CI. Dig. 229, sec. 23. 

A resident executor or administrator, having been cited to 
file his accounts and vouchers for settlement, and failing to do 
so, the judge may state an account against him, charging him 
with what shall appear to have come to his hands ; and must 
cause notice to be given to him, that unless he appear at the 
next term of the probate court, thereafter, and file his accounts 



124 REMEDIES IN THE PROBATE COURT. 

and vouchers for settlement, the account so stated as aforesaid, 
will be reported for allowance, and settled as required by law. 
If the executor or administrator fail to file his account and 
vouchers in conformity with the notice, a settlement is to be 
made, on the account stated by the judge. But if at any time 
before the final decree shall have been made, the executor or 
administrator shall appear, and file his account and vouchers 
for settlement, and shall pay such costs as may have accrued 
on the case, the court must set aside the proceedings ex joarte ; 
and make a settlement of his account, in the ordinary manner. 

When an executor or administrator shall remove beyond the 
jurisdiction of the court from which he holds his authority, 
(out of the state,) without having settled his account ; on the 
application of any person interested, the judge must cause no- 
tice to be given, by publication in a newspaper in the state, to 
be continued for such length of time as he may deem reason- 
able, requiring such executor or administrator to file his ac- 
counts and vouchers for settlement, at a regular term of the 
court, to be held not less than three months after the date of 
the notice. If he fail to file his account and vouchers at the 
time designated, a settlement shall be made in the same man- 
ner, as in the case of a resident executor or administrator, 
failing to file his account and voucher, after citation and notice. 
CI. Dig. 230, sec. 47, 48. 

On settlenrient ex parte, of the account of an administrator, 
his sureties may file an account for him, and represent him ; 
and they will be allowed the compensation, to which the ad- 
ministrator might be entitled. 7 Al. R. 615, Carroll et al. v. 
Moore, adni'r. 

When an executor or administrator, having been cited to 
appear and settle his account, shall fail to obey the citation, 
the probate court has power to attach, in the same manner as 
the circuit court may attach any person disobeying its order, 
judgment or decree. And it shall have power to summon a 
jury of bye-standers, to ascertain the fact of disobedience, and 
to apportion the fine or imprisonment. CI. Dig. 226, sec. 28. 

The executor or administrator having filed his account and 
vouchers, the judge must order publication to be made, for at 
least forty days, either by posting up written notices at the 



V 



REMEDIES IN THE PROBATE COURT. 125 

door of the court-house, and three or more other public places 
in the county, or by advertisement in a newspaper, for three 
consecutive weeks, as the judge may direct ; calling on all 
persons having an interest in the estate, to appear and contest 
the account. When the heirs or legatees are of age, and 
waive publication in a newspaper, it must not be made. None 
but legatees or distributees, and their assignees, have such an 
interest, as will give them a right to contest the account. CI. 
Dig. 229, sec. 41. Act of 1850, sec. 27. 

Publication having been made, on the appointed day, for 
good cause shown, the settlement may be continued, under 
the rules established for the continuance of cases in other 
courts. lb. 

In making the settlement, the legatees or distributees should 
be present ; and settlement and distribution should not be made 
before the executor or administrator has had an opportunity of 
citing the necessary parties. Those of them who are minors, 
should be represented by guardians ; and the husbands of those 
who are femes covert, ought to be cited. When a person en- 
titled to distribution, dies before settlement, even though he be 
an infant, his personal representative must be made a party to 
the proceedings ; and must be cited. The entries ought to 
to show, at whose instance the settlement is made ; the repre- 
sentatives who appeared ; the persons who claimed distributive 
shares ; and that the pre-requisites of the law have been com- 
plied with. 9 Al. R. 470, Harrison v. Harrison et al. 2 Al. 
R. 192, Merril v. Jones. 4 Al. R. 121, Taylor and wife v. 
Reese, adnCr. 6 Al. R. 607, Saukey^s ex'rs. v. Saukey^s distr. 
4 Port. 332, Portis v. Creugli's ex'r. 5 Al. R. 473, Robinso7i 
and wife, et al. v. Steele, adnCr. 11 Al. R. 1023, Reynolds' 
adnCr. v. Reynolds'' distr. 

In a proceeding for final settlement, any person who had not 
been made party, but who had an interest in the estate, as leg- 
atee, or distributee, or assignee, may file a petition, propound- 
ing his interest, and praying to be made party. After citation 
if no sufficient objection appear, such petitioner will be made 
a party ; and will have a right to a writ of error. 8 Al. R. 
177, Watson and wife v. May. 

In auditing the account, it is not necessary that the charges 
12* 



•126 REMEDIES IN THE PROBATE COURT. 

should be sustained by vouchers of written evidence. 9 Al. 
R. 615, Cunningham and loifev. Pool. 

At the time appointed, the judge will examine the account 
and vouchers. A party having an adverse interest, may con- 
test the account, and it is not necessary that his exceptions be 
in writing ; or that they be filed previous to the day of settle- 
ment. But this is a convenient practice ; and if the executor 
or administrator be surprised, the court will give him further 
time to meet exceptions. The judge will then state the ac- 
count, and render a decree thereon. And the decree will, in 
all respects, have the force and effect of a judgment at law. 
But the court cannot, in its decree, go further in favor of the 
executor or administrator, than to discharge him. CI. Dig. 
229, sec. 42. 10 AL R. 608, Steele v. Knox. 16 Al. R. 730, 
Brazier and Co. v. King. 

In this proceeding, a sworn account against the deceased, is 
pri?na facie evidence of ihe claim, to justify the executor or 
administrator in paying it. But if this item be contested, the 
executor or administrator must furnish better proof of the va- 
lidity of the claim, in order to be allowed the payment. 6 Al. 
R. 907, Askey v. Weissenger. 

The executor or administrator must account for all profits 
which have accrued from the estate in his hands. If he com- 
pound the debts, the benefit must accrue to the estate. If he 
lay out the funds in private securities, he will be accountable 
for all the profits, and at the same time answerable for all the 
losses. 

In the settlement of his account, interest is to be calculated 
on the debits, and on the credits. 9 Al. R. 615, Cunningham 
andioife v. Pool. 

In makino- the settlement, the executor or administrator must 
state under oath, the sum belonging to the estate, which he has 
used on his individual account, and the time at (during) which, 
it was so used ; or he shall expressly deny, under oath, that he 
has used any of the funds of the estate. Any party interested 
mav controvert the statement ; and the question is to be de- 
cided by the judge, on the evidence adduced ; or, if the judge 
deem it necessary, or either party request it, a jury must be im- 
panneled to try the issue. CI. Dig. 198, sec. 28. 



REMEDIES IN THE PROBATE COURT. 127 

If the executor or administrator keep the money of the estate 
dead, in his hands, without sufficient reason for it, this is gross 
neghgence, or breach of trust ; and he is chargeable with in- 
terest on the sum so kept idle. 

An executor or administrator, authorized by the probate 
court to keep the personal estate together, must make an annual 
return to that court, of the manner in which the estate has 
been managed ; of the crops made ; of the expenses incurred ; 
and of the disposition of the money received from the estate. 
On his failure to do so, it is the duty of the judge, forthwith to 
issue an attachment, to compel him to make such return. CI. 
Dig. 131, sec. 31. 

The returns mentioned in the preceding paragraph may be 
used against the executor or administrator, on the final settle- 
ment ; but are no evidence in his favor. 

An executor or administrator, without authority from the 
will, or an order from the probate court, has no authority to 
keep the estate together, and to work the slaves on the planta- 
tion, beyond making and taking care of the crop planted, or 
growing at the death of the testator or intestate. And if he 
do so without such authority, the distributees may elect, either 
to take the profits which he has made, or to charge him with 
the rent of the land, and the hire of the negroes, and planta- 
tion appurtenances. And he will be charged accordingly, on 
his final settlement. 10 Al. R. Steele v. Knox. 

When there has been a gross breach of trust by the executor 
or administrator, in the use of the money of the estate, he may 
be charged with compound interest. 

The executor or administrator is not to be charged with the 
unpaid notes of third persons, as cash, unless they have been 
lost by his neglect or mismanagement. 1 Al. R. 594, Dough- 
tit's adrrHr. v. Doughtit. 8 Al. R. 27, Duffee, adm'r. v. Bu- 
chanan and wife. 10 Al. R. 154, Key v. Boyd, ex''r. 

An executor or administrator ought to be allowed a reason- 
able compensation for his services, and proper charges for all 
reasonable expenses incurred by him in the management of the 
estate ; but not for any which have arisen from his ow^n de- 
fault. And he is entitled to compensation for his services — 
except in cases of wilfull default, or gross negligence. Com- 



128 REMEDIES IN THE PROBATE COURT. 

pensation should then be refused to him. 9 Port. 664, Phillips^ 
adTrCr, v. Thompson and ivife, ex'r. and ex'x. 10 Al. R. 900, 
Powell et al. v. Powell. 

An administrator who is an attorney, may be allowed com- 
pensation for his professional services ; but the ordinary rate 
of fees, is not the rule, as to the amount to be allowed him. 9 
Al. R. 895, Harris v. Martin. 

A claim for money expended for the maintenance of an in- 
fant, is properly presented to the probate court, for allowance. 
6 Port., Gregg et al. v. Betliea. 

After such claim has been allowed by the probate court, it 
may be embraced in the account of the executor or admin- 
istrator. 

When, in pursuance of a will, an estate is kept together, for 
distribution at a future time, the probate court may allow to 
the executor, or the administrator with the will annexed, an 
annual salary, in lieu of commissions. From this order fixing 
the salary, either party may appeal to the chancery court, by 
petition filed within one year. 

The executor or administrator, who has defended an action 
for the benefit of an estate, is entitled to be reimbursed his 
damages, out of the assets. 8 Al. R. 564, Presnal v. Mahry. 
9 Al. R. 734, Oneil v. Donnell. 

Services for taking an inventory, selling the goods, and 
keeping the account, are not entitled to extraordinary compen- 
sation, lb. 

In making the settlement, the executor or administrator is 
to be charged with any amount due by himself to the deceased, 
as money in his hands. And he w-ill not be allowed, as a set- 
off, a claim against a distributee, due to the estate, or to him- 
self individually. He will not be allowed a credit, for board- 
ing furnished to distributees ; nor for advances to the widow 
and children of the deceased, (unless sanctioned by the pre- 
vious order of the orphans' court.) 8 Al. R. 27, Duffee, adnCr. 
V. Buchanan. 9 Port. 664, Philips, adirHr. v. Thompson and 
wife, ex'r. and ex^x. 9 Al. R. 330, Willis, admW. v. heirs of 
Willis. lb. 491, BrazeaWs adrrCr. v. BrazeaWs distr. 11 Al. 
R. 521, Parker and wife v. McGaha, admW. 15 Al. R. 202, 
Bondurant, adrrHr. v. Thompson! s disCs. 



REMEDIES IN THE PROBATE COURT. 129 

An executor or administrator with the will annexed, man- 
aging a plantation in pursuance of a will, is required to show, 
that the articles and services charged for, came to the use of 
the estate ; but he is not required to show, that the articles or 
services were necessary, or that the prices were reasonable, 
unless there be reason to suspect want of good faith. And on 
payment of a judgment, proof must be made of the judgment, 
as well as of the payment. 11 Al. R. 49, Savage v. Benham, 
adm\. But see lb. 872, Nolly v. Wilkiiis, admW. de bonis 
nan. 

On settlement of the accounts of an executor or adminis- 
trator, written memoranda made by a former one, are not evi- 
dence. 9 Al. R. 925, McLaughlin^ adnir. v. creditors of Nelms. 

The sheriff, and the coroner, ex officio administrator, and the 
general administrator, are subject to citation, and the other 
proceedings for the settlement of the accounts of administra- 
tors. 9 Al. R. 925, McLaughlin, adnCr. v. creditors of Nelms. 

When the judge of the probate court has been employed as 
counsel, in a matter affecting the settlement of an estate, or is 
otherwise interested in it ; or shall be related to either of the 
parties by consanguinity or affinity, he shall not take jurisdic- 
tion thereof, or decide thereon, unless by consent of the par- 
ties. Such causes shall be commenced in, or transferred to, 
(as the case may be,) the circuit court; and the circuit court 
shall proceed therein, as the probate court should have done. 
Act of 1850, sec. 40. 

Annual settlements are prima facie, to be considered as 
correct ; provided, the distributees had an opportunity of con- 
testing them ; but they may be impeached by evidence show- 
ing them to be incorrect. 9 Al. R. 330, Willis, adm'r. v. heirs 
of Willis. lb. 491. BrazeaWs adiiHr. v. Brazeales distr. 13 
Al. R. 329, Smith's heirs v. Smith's adm'r. 16 Al. R. 652, 
Willis' adm'r. v. Willis' dist's. 

All decrees of the judge of probate, on final settlement of 
the accounts of executors and administrators, and on legacies, 
have the force and effect of judgments at law ; and execution 
may issue thereon, against the executor or administrator, for 
the collection of the several legacies, or distributive amounts. 
Under the decree, each distributee, heir or devisee, may have 



130 REMEDIES IN THE PROBATE COURT.' 

a writ of execution, or attachment, or both, in case of personal 
estate ; and in case of real estate, a writ of habere facias j)Os- 
sessionem. CI. Dig. 304, sec. 42. 3 Al. R. 752, Childress v. 
Childress. CI. Dig. 305, sec. 43. 

The court should insert in the decree, the amount of each 
legacy, or distributive share, with the name of the legatee, or 
distributee, to whom it shall have been awarded. A decree in 
general terms, in favor of the legal representatives, or in favor 
of the legatees jointly, or in favor of the distributees jointly, is 
erroneous. It should be in favor of each legatee, or distrib- 
utee, specifically as to amount, and by name. CJ. Dig. 305, 
sec. 44. 2 St. and Port. 373, Betts, adnCr. v. BlackweWs heirs. 

5 Al. R. 280, Joseph, adm^r. v, legatees of Joseph. 8 Al. R. 
601, Saukey's ex'rs. v. Saukey's distr. 15 Al. R. 652, Croft 
V. Terrell et al. 

A decree of the judge of probate, in a case within his juris- 
diction, may not be impeached collaterally ; and if it be final, 
it cannot be set aside by the same court, at a subsequent term. 

6 Port. 219, Wyman et al. v. Campbell. 10 AL R. 299, Davis 
V. Davis. lb. 636, DuvaVs heirs v. PI. and Mer. Bk. et al. 1 1 
Al. R. 292, Edwards v. Gibbs and Co. 

When the citation to the executor, to account, is in the 
name of the husband alone, in right of his wife, she being en- 
titled to a distributive share ; but the decree is erroneously 
made in the name of husband and wife ; and no exception be 
taken to the irregularity, in the orphans' court ; the irregularity 
is no ground for error. If the name of the wife is not to be 
found in the record, the error of instituting the proceeding in 
the name of the husband, cannot be corrected. 10 Al. R. 455, 
Saukey's ex'rs. v. Elsberry. 11 Al. R. 143, Petty v. Wafford. 

A decree in favor of an infant distributee, without the inter- 
vention of a trustee, is not erroneous ; but exe||Lition thereon, 
without a guardian's being made party, is erroneous. 15 AL 
R. 335, Green, adnCr. v. disfs. of Pagan: 

The documents and evidence of all settlements made with 
executors and administrators, in the probate court, must be 
preserved by the judge ; and the settlements shall be entered of 
record. And the evidence, documents, vouchers and settle- 
ment aforesaid, will be good evidence in any suit for or against 



REMEDIES IN THE PROBATE COURT. 131 

such executor or administrator, and must not be impeached, 
except for fraud in obtaining them. CI. Dig. 304, sec. 37. 

Under a Hteral construction of the statute referred to in the 
preceding paragraph, the record and documents may be used 
as evidence of particular facts, for or against persons who 
were neither parties nor privies, in the settlement made. It 
cannot be supposed, that the law intends such flagrant violation 
of established principles. A document cannot be competent 
evidence against a party, who has not, by himself, or his privy, 
had an opportunity of objecting to it : and a decree (not in 
rem,) cannot be binding on one, who has not, by himself or his 
privy, had an opportunity of resisting it. 

SETTLEMENT OF INSOLVENT ESTATES. 

In case of the insolvency of the estate of a deceased person, 
the whole estate, both real and personal, must be distributed 
among the creditors, pro rata ; except debts for the last sick- 
ness, and for the funeral expenses : which must be paid in full. 
CI. Dig. 192, sec. 2. 

When the defendant in any action dies after judgment, but 
before execution, the estate being declared insolvent, such judg- 
ment creditor will not have a preference over any other credit- 
or. 4 Al. R, 668, Blount Sf Stanly v. Traylor. 

In a suit commenced by attachment, if the defendant die be- 
fore judgment, and his representatives sustain a plea that the 
estate has been declared insolvent, the attachment will not 
create a preference. 3 Al. R. 398, Hale, adrrHr. v. Cumming 
6f Spyker. 

An executor or administrator, ascertaining that the estate of 
which he has charge, is insolvent, must file in the office of the 
probate court, an allegation in writing setting forth that the 
estate is insolvent, and praying that it may be declared insol- 
vent. And to this allegation, he must attach, as parts thereof, 
three several schedules, viz. 

1st. A schedule which shall contain a full and true statement 
of all the goods and chattels, and choses in action, and all other 
personal effects belonging to the estate, with the estimated 
value of each item. 



132 REMEDIES IN THE PROBATE COURT. 

2d. A schedule which shall contain a full statement of all the 
real estate of which the deceased was possessed, or in or to 
which he had any right, title, claim, or interest, at the time of 
his death, with a statement of the local situation of the same, 
the nature of the title, or interest of the deceased, and the esti- 
mated value. 

3d. A schedule which shall contain a statement of all the 
claims existing against the estate, the nature and amount of 
each claim, and the name and residence of each creditor. 
^' The allegation of insolvency, and the schedules aforesaid, 
must be verified by the written affidavit of the executor or ad- 
ministrator, that the same are true and correct, to the best of 
his knowledge, information, and belief CI. Dig. 192, sec. 2. 

When the allegation of insolvency has been filed, the judge 
must make an order appointing a day not less than thirty, nor 
more than sixty days from the filing thereof, for considering the 
allegation, and determining whether the estate be insolvent. 
And he must give notice to the creditors of the estate, of the 
filing of the allegation, and of the day appointed for determining 
on it, by publication in a newspaper published nearest the court- 
house, and by putting up a copy of the notice at the court-house 
door, — the publication to be continued for such time as may be 
directed in the order for publication. And he must issue similar 
notices, to be served by the sheriff on each creditor residing in 
the county ; and he must send like notice by mail, to each cred- 
itor residing out of the county. But the omission of service of 
notice on any creditor, will not be sufficient cause for delaying 
to hear and determine the allegation of insolvency. CI. Dig. 
192, sec. 3. 

If no opposition be made by any creditor, the estate will be 
declared insolvent. But any creditor or creditors may, by an- 
swer in writing, deny that the estate is insolvent, and thereup- 
on an issue will be made up, under the direction of the court, to 
try whether the estate is or is not insolvent. If either party 
desire it, this issue must be tried by a jury, at such time as the 
court may direct. If jury-trial be not requested by either of 
the parties, the question of insolvency will be decided by the 
court. If the issue be decided against the executor or adminis- 
trator, the proceeding will be dismissed at his costs. If the 



RExMEDIES IN THE PROBATE COURT. 133 

issue be decided in support of the allegation, the estate will be 
declared insolvent, and the costs of the proceeding must be paid, 
either by the contesting creditor or creditors, or out of the funds 
of the estate, at the discretion of the court. Any creditor not a 
party at the making the issue, may, at any time before its trial, 
on motion, be admitted to join in it, and not more than one 
issue may be made upon the allegation of insolvency. CI. 
Dig. 192,5ec. 4. 

When the estate shall be so declared insolvent, the court 
must at the same time make an order requiring the executor or 
administrator to make a settlement of his account, on a day ap- 
pointed in the order, not less than thirty nor more than sixty 
days from the day of making the order. And the court must 
at the same time order, that notice thereof, and to attend the 
court, be given to the creditors, in the manner prescribed for 
the previous notice to creditors. CL Dig. 193, sec. 5. 

As the executor or administrator of an insolvent estate is re- 
quired to make a settlement of his account, not less than nine 
nor more than twelve months after an estate has been declared 
insolvent, it is a convenient practice to postpone the settlement 
mentioned in the preceding paragraph, until the lapse of the 
nine months, when the old executor or administrator is contin- 
ued in the management of the estate. It cannot be thought 
that the law requires two settlements from the same executor 
or administrator, within the one year ; and the settlement first 
mentioned, seems to have been intended, only when the old ex- 
ecutor or administrator has been superseded by the election or 
appointment of a successor. 

On the settlement of the account of an executor or adminis- 
trator on an insolvent estate, whenever made, all the rules of 
law are applicable which have been stated for the settlement 
of the account of an executor or administrator on a solvent 
estate. 

On the day appointed for settlement as aforesaid, and for at- 
tendance of creditors, they are to hold a meeting, in the pres- 
ence and under the direction of the court ; and then and there 
elect a suitable person, being a resident citizen of the state, as 
administrator de bonis non. And when the person so elected 

shall take the oath and enter into bond with security, as required 

13 



134 REMEDIES IN THE PROBATE COURT. 

by law on the appointment of administrators, the court must 
grant him letters of administration de bonis non. In making 
this election, each creditor is entitled, personally or by agent or 
attorney, to give a number of votes proportioned to the amount 
of his claim, according to the following scale. Each creditor 
having claims not exceeding one thousand dollars, will be enti- 
tled to one vote for every hundred dollars ; and each creditor 
having claims exceeding one thousand dollars, will be entitled 
to ten votes for the first thousand dollars, and one additional 
vote for every five hundred dollars over and above the first 
thousand dollars; and every creditor, however small his claim, 
will be entitled to at least one vote, and no creditor, however 
large his claim, can have more than twenty votes. In this 
election, the person having a plurality of votes, is elected ad- 
ministrator. CI. Dig. 193, sec. 6. 

The meeting of creditors for the election of the administra- 
tor de bonis non, may be continued from time to time, with the 
assent of the court. And whenever a vacancy occurs in said 
office, from any cause, the court, on the motion of any creditor, 
must order another meeting of the creditors to fill such vacan- 
cy, in the manner herein- before directed. CI. Dig. 11)3, sec. 7. 

If none of the creditors shall attend at the time appointed for 
the election of an administrator de bonis non, or if from any 
other cause, the election be not held, the judge may, in his dis- 
cretion, continue the old executor or administrator in office, or 
he may cast the administration on the administrator general, or 
if there be no administrator general, he may cast the adminis- 
tration on the sheriff'. CI. Dig. 193, sec. 8. 

On the election or appointment of an administrator de bonis 
non, as herein-before prescribed, the previous grant of letters 
testamentary, or of administration, is thereby revoked. And 
such administrator de bonis non is entitled to demand and re- 
ceive, from the old executor or administrator, all money due 
from him to the estate, and all the goods and chattels, choses in 
action, and other personal effects, and deeds, and other eviden- 
ces of title to the lands of the estate ; and he may recover them 
by any proper proceedings or actions, either in the orphans' 
court, or any court of common law, or of equity. CI. Dig. 194, 
sec. 9. 



REMEDIES IN THE PROBATE COURT. 135 

After an estate has been declared insolvent, it is not required 
that claims against the estate be presented to the executor or 
administrator ; but every person having a claim against such 
insolvent estate, must file it in the probate office, within six 
months after the estate has been declared insolvent. CI. Dig. 
195, 5ec. 15. Ih. 194, sec. 10. 

A claim is sufficiently filed to preserve it, if it be presented to 
the judge for that purpose, even though he omit to file it. And 
it is not necessary to file the note, or other evidence of claim. 
A copy, or substantial statement of the claim is sufficient. 14 
Al. R. 92, Rutherford' s admrs. v. Branch Bank at Mobile. 

Claims filed as above, must be verified by the affidavit of 
some person having a legal or equitable interest in the claim, or 
of the agent of such person. CI. Dig. 194, sec. 10. 12 Al. R. 
551, Cock V. Davis. 14 Al. R. 416, PI. <^ Mer. Bank v. Smith. 

Whatever be the nature of the claim, even if it be a preferred 
debt, or a judgment, it must be filed within six months after the 
estate has been declared insolvent, or it will be barred, even 
though it be embraced in the schedule filed by the administra- 
tor, or be due to the administrator. 8 Al. R. 454, Hollinger et 
al. V. Holly et al. 1 1 Al. R. 730, Campbell's adm'r. v. Camp- 
bell's creditors. 

The omission to verify a claim by affidavit, is no ground for 
rejecting the claim, unless objection on this ground be filed in 
writing, within nine months after the estate has been declared 
insolvent, as directed by the statute. The necessity for an affi- 
davit does not exist, until the exception is duly taken to its 
omission ; and even after the exception has been taken, the affi- 
davit may be supplied at any time before the hearing ; and in 
the discretion of the court, after the hearing, and before the 
decree. 8 Al. R. 454, Hollinger et al. v. Holly et al. 10 Al. 
R. 520, Shortridge v. Easly, adm'r. lb. 564, Brown <^ Co. v. 
Easly, adm'r. 12 Al. R. 191, Gilbert v. Brashear 6f Gooch. 
9 Al. R. 73, Non^is Sf Lapsley, adm'rs. v. Gohby. 14 Al. R. 
92, Rutherford's adm'rs. v. Branch Bank at Mobile. 

The affidavit may be made before a justice of the peace. 14 
AL R., Bloodgood v. Smith, adm'r. 

The judge must give to the claimant, his agent or attorney, a 
receipt for the claim filed, and must endorse on the claim the 



136 REMEDIES IN THE PROBATE COURT. 

day when filed. And he must keep a docket or list of the 
claims filed, which must at all times be subject to the inspection 
of the administrator, (or executor,) and of the creditors. CL 
Dig. 194, sec. 10. 

If within nine months after an estate has been declared in- 
solvent, no objection be made in the mode prescribed, to a claim 
which has been filed according to law, such claim must be 
allowed without proof, as a valid demand against the estate. 
And when a claim has been allowed, no exception having been 
taken, it will be presumed on error, that all requisite proof was 
made. CI. Dig. 194, sec. 10. 12 Al. i?.494, Boggs' adrnr. v. 
Branch Bank at Mobile. 

At any time within nine months after an estate has been de- 
clared insolvent, the administrator (or executor,) or any credit- 
or or creditors, in the name of the administrator (or executor,) 
may object to the allowance of any claim filed against the 
estate, and the objection must be in writing, and be filed in the 
probate office. On the objection being filed, it is not the duty 
of the court, of its own volition, to make up an issue, but on the 
application of either party, it must cause an issue to be made 
up, between the claimant as plaintiff, and the administrator, or 
the contesting creditor, in the name of the administrator (or ex- 
ecutor,) as defendant ; the pleadings being such as would be 
used, if the claimant had sued the administrator at common 
law. If the issue be found against the claimant, his claim is 
thereby rejected, and he must pay all costs of such issue and 
trial. If the issue be found for the claimant, for the whole 
amount of his claim, it must be allowed as a valid demand 
against the estate, and he will recover all his costs, to be paid 
by the contesting creditor, or out of the funds of the estate, as 
the court may direct. And if a part only of the claim be found 
due, it will be allowed to the amount so found ; and the court, 
in its discretion, will direct by which party the costs shall be 
paid, or that the costs shall be paid by each party, in such pro- 
portion as it shall deem just. CL Dig. 194, sec. 11. 12 Al. R. 
551, Cookv. Davis. 

The executor or administrator of an insolvent estate, must 
make a settlement of his account, on a day to be appointed by 
the court, not less than nine nor more than twelve months after 



REMEDIES IN THE PROBATE COURT. 137 

the estate has been declared insolvent. At this settlement the 
court must decree to each creditor, his rateable proportion for 
the debt found due to him ; reserving however, in the hands of 
the executor or administrator, a rateable proportion of the funds 
of the estate, for such claims as may be then under contesta- 
tion. And a similar rateable distribution must be made at least 
once in every six months, at such times as the court may ap- 
point, until final settlement and distribution. CI. Dig. 194, 
sec. 12. 

The day appointed for the settlements above mentioned, 
must be at the regular terms of the court, or return-days ; and 
the account is to be adjusted on the principles before stated for 
the settlement of accounts on solvent estates. 

In the settlement of an insolvent estate, the executor or ad- 
ministrator has no right to retain in full, for a debt due to him- 
self. He is entitled only to a pro rata payment on the same 
scale with other creditors. 10 Al. R. 520, Shortridge v. Easley 
adinr. 

When in an action at law against the executor or adminis- 
trator, he has sustained a plea that the estate has been declared 
insolvent, but the plaintiff has obtained a judgment on another 
plea, a duly certified transcript of such judgment must be certi- 
fied to the orphans' court, and be filed as a claim against the 
estate, in the manner prescribed for filing claims. And such 
judgment, with the costs of suit, will be allowed a rateable pay- 
ment, like other claims. 

The supreme court has decided that the plea that the estate 
has been declared insolvent, must state further that the report 
of insolvency was made by the defendant, and that he is still 
the administrator. 11 Al. R. 259, Cameron, exr. v. Clark 
Smith 6f Co. {Sed quere) ^ 

On the trial of any issue, under the act for the settlement of 
insolvent estates, any party dissatisfied with a decision or 
charge of the judge presiding, may except and have a bill of 
exceptions, as at common law ; and may, within twelve months 
thereafter, appeal from, or sue out a writ of error to the judg- 
ment, as at common law. But the appeal, or writ of error, 
cannot be prosecuted by or against a single creditor, when 
there are several creditors. CI. Dig. 195, sec. 14. 7 Al. R. 
13* 



138 REMEDIES IN THE PROBATE COURT. 

123. Martin, admr. v. Baldwin. 8 Al. R. 454, Hollinger et 
al. V. Holley et al. - ^ -^ 

." , EXECUTION FROM THE PROBATE COURT. 

Execution from the probate court, against an executor or ad- 
ministrator, must be made returnable to some succeeding term 
of that court, not less than three nor more than six months 
from the date of the execution; otherwise it will be void. 11 
Al R. 127, Westmoreland v. Hall. 12 Al. R. 829, Graham ^ 
Abercro?nbie v. Chandler. 15 Al. R. 576, Little et al. v. Knox, 
adm'r. Act of 1850, sec. 21. 

Whenever execution shall have issued against an executor or 
administrator, on the final settlement of his account, and decree 
thereon in the probate court, and it be returned by the sheriff, 
"no property," generally, or as to apart thereof, execution must 
forthwith issue against his securities. 

Under the construction given to the statute by the supreme 
court, this return on the execution is not conclusive. The 
parties have a right to test the sufficiency of the bond, but the 
manner of doing so is not settled. It is erroneous to enter up 
judgment on such return of " no property found." CI. Dig. 
305, sec. 45. 5 Al. R. 117, Clarke v. West. 

' > , BOND FOR TITLE TO REAL ESTATE. 

When bond for title to land has been given, and the obligor 
dies before the title has been executed, the obligee may petition 
the probate court to compel the executor or administrator of 
the obligor, to make title in conformity with the bond, and the 
court must give notice of the petition, by publication in a news- 
paper published in the state, once a month for at least three 
months. And if the court then find, that the contract has been 
fairly made, it must order the executor or administrator to 
make title, for the lands sold by the testator or intestate, and it 
may coerce obedience, by attachment, should the executor or 
administrator refuse to comply. From this order there may be 
an appeal, as in other cases in the probate court. CI. Dig. 157, 
sec. 38. 

On the proceeding to compel the executor or administrator 



PROBATE COURT. 139 

to make title, on the bond of the testator or intestate, it was de- 
cided at an early day. that the order to make title should not be 
granted, if the obligor did not own the land at the time of the 
contract, or if the agreement to convey, was not under seal. 
And the petition must aver, that the deceased was the owner 
of the land, at the time of his death. 16 Al. R. 348, Driver, 
admr. v. Hudspeth. Minor s R. 33, Simpson's adm'r. v. 
Simpson. 

In this proceeding, the petition must alledge, that letters tes- 
tamentary, or of administration, have been granted by the court, 
to which the application is made. The jurisdiction of the court 
attaches, on the making the order for citation, or publication ; 
and the decree, even though erroneous, cannot be collaterally 
impeached. 6 Port. 262, Couch v. Robinson. 7 Al. R. 635, 
Samuels v. Findley. 9 Al. R. 403, Cams'' admlr. v. Townsend, 

RESIGNATION. 

A proceeding against an executor or administrator, in the 
orphans' court, will not abate, on his resignation ; but may still 
be carried on against him. 5 St. and Port. 181, Thomason and 
Hayne^s ex'rs. v. Blackivell. 

COURT OF PROBATE. 

There shall be established, in each county in the state, a 
court of record, to be styled, " The Court of Probate." It shall 
be composed of one judge, who shall be styled, " The Judge of 
Probate" of the proper county. He is to be elected by the 
qualified voters of the county, and to be commissioned by the 
governor ; and will hold the office for the term of six years, and 
until a successor shall be qualified, unless sooner removed from 
office. The election is to be governed by the rules provided 
for the election of members of the general assembly. He must 
be a citizen of the State of Alabama ; and must have resided in 
the county for which he shall be elected, one year immediately 
preceding his election. Act of 1850, sec. 1 and 2. 

The judge of probate, before entering on the duties of his 
office, must take and subscribe before a justice of the peace of 



140 PROBATE COURT. 

his county, an oath or affirmation to the following effect — " 1 do 
solemnly swear, (or affirm,) that I will impartially and diligently, 
and without being influenced by fear, favor, or aflfection, faith- 
fully execute the duties of judge of probate of county, 

according to law, to the best of my skill and ability, as long as 
I may continue in said office." And he must also enter into 
bond with good and sufficient securities, to be approved by the 
judge of the circuit court, in such penalty as shall be fixed by 
him, not less than five thousand dollars, payable to the governor 
for the time being, and his successors in office ; conditioned for 
the faithful performance of the duties of his office. This bond 
must be recorded by the clerk of the circuit court ; and be filed 
in the office of the secretary of state. If the judge of probate 
shall fail to execute and file his bond for forty days next after 
his election or appointment, it is the duty of the secretary of 
state, within five days after the expiration of the time limited, 
to certify such failure to the governor ; and it is then the duty 
of the governor to fill the office, as in other cases of vacancy. 
In action on the bond, a certified copy from the secretary of 
state, or a certified copy of the record, from the clerk of the cir- 
cuit, will be competent evidence ; except in cases where there 
is a plea of non est factum — when the original must be produ- 
ced. The oath taken as above prescribed, must be filed by the 
justice administering it, in the office of the clerk of the circuit 
court. 

On the representation of the grand-jury impaneled at the cir- 
cuit court, or of three members of the commissioner's court in 
vacation, that the bond of the judge of probate is insufficient, 
the judge of the circuit court must require him to enter into 
new and sufficient bond. On failure for forty days, to comply 
with this requisition, the judge of the circuit must declare the 
office vacant, and certify the same to the governor ; and the 
governor must then fill the office, as in other cases of vacancy. 
ActoflSbd, sec. 3, 4, 5, 6. 

Vacancies in the office of judge of probate, must be filled by 
the governor ; the appointee to hold the office until the 1st Mon- 
day in May next after his appointment, and until his successor 
shall be elected and qualified. Act of 1850, sec. 7. 

The judge of probate has original jurisdiction in relation to 



PROBATE COURT. 141 

probate of wills, granting letters testamentary, or of administra- 
tion, and revoking the same, appointing and removing guardi- 
ans, binding apprentices, and controversies affecting them, and 
in general in all matters pertaining to a court of probate. Act 
O/1850, sec. 8, 9. ^ 

The judge of probate must have a seal of office, with suita- ^ ^ 
ble emblems. He is required to keep his office at the court- ^ ^ ^ 
house of the county ; and to keep it open for the transaction of T. 

business at least on Monday, Tuesday, and Saturday, from nine 
o'clock, A. M., until four o'clock, P. M., except one hour at 
noon. He must hold a regular term on the second Monday in 
each month ; and he may hold special or adjourned terms, 
when business shall require. His court is always open, except , 
on Sunday, for the purpose of making such orders as are grant- 
able of course, ^c^ of 1850, sec. 11, 12, 13. 

The judge of probate is required to perform all the duties 
heretofore incumbent on the clerk of the orphans' court : but 
he may employ a .deputy for acts not judicial. Act of 1850, 
sec. 16, 18. 

The judge of probate must keep records of all his official acts 
and proceedings, and of all wills and codicils, and probate 
thereof, of all bonds of executors and administrators, their an- ^ -.^ ^ 
nual and final settlements, inventories, appraisements, accounts. .^.^ ^.. 
of sale, all accounts of executors, administrators, and guardians ; , ^^ 
and must arrange them under proper heads for easy reference ; ^ .,^. 
and preserve the originals on file in his office ; and must perform 
all the duties of register of his court. Act of 1850, sec. 9,^16. ^ 

The judge of probate is not entitled to any fee, from an exec- 
utor or administrator, or his agent, on the examination of books 
and papers in his office. CI. Dig. > • 

The sheriff, when required, must attend the sittings of the 
judge of probate. When the sheriff is incapable, from interest, 
or other cause, the coroner must perform this duty. Act of 
1850, sec. 22. 



f-o ♦ 



142 PROBATE COURT. ERRORS AND APPEALS, 
ERRORS AND APPEALS. 

A party aggrieved by any interlocutory or final order or de- 
cree of the judge of probate, may, within three years from the 
-. rendition thereof, appeal to the same court, or have a writ of 

error to that court. And he may stay the judgment of the pro- 
4> 7 ^ bate court, by giving bond with sufficient securities, in double 
^^^y^v'* the amount of the judgment, to be approved by the judge of 
**^^^^ ^— probate, with condition to prosecute the appeal or writ of error 
*''**^7 ^^ effect, and to satisfy the judgment which may be rendered by 

the supreme court. Act of 1850, sec. 29. 

In all cases of appeal or writ of error, the judge of probate 
must deliver to the appellant or plaintiff in error, a full trans- 
cript of the record and proceedings in relation to the item or 
opinion appealed from, or complained of as erroneous. When 
the error complained of is not apparent on the record, it must 
be presented in a written statement in the nature of a bill of 
exceptions, signed by the judge of probate. Act of 1850, 
sec. 30. 

At any time within three years after any final decision in the 

probate court, the chancery court will, on bill filed, correct any 

*w S tf**>^ errors in law or fact therein. But in this proceeding, the chan- 

^^cery court will not correct any error of law or fact, not appear- 

ti/ JL ^^^ ^^ record, except on such allegations and proofs, as will 

. 77/2^ show that such error occurred without any fraud, accident, or 

c.^^,^^ neglect of the complainant or his attorney. These proceedings 

A, /^>L-A,w-^*in chancery may be revised, like other proceedings in courts of 

chancery. Act o/1850, sec. 31. 

The rights of infants, married women, and persons of unsound 
mind, are reserved for three years after the removal of their 
disability, lb. 

In personal actions, a right to the writ of error passes to the 
personal representative. 

Any party dissatisfied with any decision, or charge of the 
court, in the proceedings for the settlement of insolvent estates, 
may have a bill of exceptions, and writ of error. CI. Dig. 195^ 
sec. 14. 

On a writ of error, on the settlement of an insolvent estate. 



PROBATE COURT. NEW TRIAL. 143 

all the creditors must be parties. 7 Al. R. 577, Br. Bank at 
Mobile, V. adrrCrs, of Murphy. 

On the trial of an issue, under the act of 1843, for the settle- 
ment of insolvent estates, taking an appeal, or suing out a writ 
of error, is limited to twelve months after the decision in the 
orphans' court. CI. Dig. 195, sec. 14. S Al. R. 454, Hollin- 
ger et al. v. Holly et al. 

On annual settlements made in obedience to law, there may 
be a writ of error. 1 1 Al. R. 49, Savage v. Benham, adm'r. 

On a settlement by an administrator, his omission to file a list 
of the distributees, is no ground for error. 10 Al. R. 203, Ed- 
dings et al. V. Long et al. 

Refusal of the orphans' court, to entertain a petition, for a 
share in the distribution of an estate, cannot be revised on error. 
The remedy is, by certiorari. 10 Al. R. 622, Fowler v. Trew- 
hitt, adm'r. 

NEW TRIAL. 

A new trial may be granted by the probate court, at the term 
at which the decree was rendered ; but not after the close of the 
term. 9 Al. R. 783, Fitzpatrick's adm'r. v. Hill. 



PART V. 



. APPOINTMENT OF GUARDIAN. 

A court of chancery may appoint the father, guardian of the 
estate of his minor child, requiring him to give security. 11 
AL R. 37. Lang et al. v. Peltus. 

The probate court has authority to appoint guardians for 
minors ; and the judge of that court is required to appoint guar- 
dians for those minors who have separate estates devised and 
settled on them, and whose fathers may be still alive. But such 
guardian will have no control over the person of the ward, dur- 
ing the life of either of the parents of such ward. CI. Dig. 
267, sec. 1. Ih. 226, sec. 27. Ih. 272, sec. 26. 

When there are two or more minors, having estates undivi- 
ded, derived from the same source, as legatees, distributees, or 
otherwise, they must all be embraced in one guardianship. 
Acts of 1850, sec. 32. 

A minor over fourteen years of age, may choose his guard- 
ian ; and his choice must be made in the presence of the judge, 
or be certified to him by a justice of the peace. CI. Dig. 267, 
sec. 1. 

The court ought to appoint as guardian, the person so chosen 
by a minor over fourteen years of age, if there be no strong ob- 
jection to him, showing him disqualified for the office. But the 
court should not be led by the choice of the minor, to appoint, 
as guardian, a person known to it to be unworthy of the trust. 

The court is to exercise its own discretion, in appointing 
guardians for minors under fourteen years of age. 



REVOCATION. BOND. 145 

A guardian rnay be appointed by the father, in his will, for 
his minor child. CL Dig. 209, sec. 10, 11. 

A testamentary guardian must declare his acceptance in open 
court, and must give bond, and file an inventory, as required by 
law, of other guardians. And he must not remove his ward 
from the custody of the mother, before such ward has attained 
the age of fifteen years ; unless the orphans' court shall then de- 
clare the mother, an unfit person to have charge of the child. lb. 

When there is a minor, for whom no suitable person can be 
procured to act as guardian, the court may appoint the sheriff, 
guardian ; and he will be required to act as guardian for such 
minor. CI. Dig. 272, sec. 22. 

REVOCATION OF GUARDIANSHIP. 

The probate court may, for good and sufficient cause, displace 
a guardian, on petition specifying the grounds, giving fourteen 
days notice, by citation, to show cause against his removal. 
CI. Dig. 268, sec. 4. 11 Al. R. 461, Speight v. Knight. 

Tlfe removal of a guardian from the state is not, absolutely, 
a sufficient cause for revocation of his guardianship ; but it may 
be a sufficient cause, in the discretion of the court. 8 Al. R. 
781, Eiland, Judge, y. Chandler. 11 Al. R. 461, Speight y. 
Knight. 

BOND. 

Before the grant of letters of guardianship, the guardian must 
enter into bond, with at least two sufficient securities, approved 
by the judge of probate, and payable to him and his successors 
in office, in such penalty as he may direct, which must be at 
least double the estimated value of the estate of the ward. This 
bond will not become void on the first recovery, but may be 
prosecuted from time to time, against all or any of the obligors, 
in the name, and at the cost of the ward. CL Dig. 221, sec. 3. 

14 



v'« 



146 POWER OF THE GUARDIAN. 



POWER OF THE GUARDIAN. 



A statutory guardian holds in free and common soccage ; 
and has the custody of the person, and of the estate, of his ward. 
6 Port. 11, Hine v. Nixon et al. 

When one person is both executor and guardian, he does not 
hold any thing, as guardian, but what has been separated from 
the assets of the estate of the deceased, as the estate of the ward. 
10 Al. R. 299, Davis v. Davis. 

The probate court may authorize the guardian to keep to- 
gether the personal estate of his ward, and to employ it in agri- 
culture, on the land of his ward. CI. Dig. 270, sec. 14. 

The guardian may hire the slaves of his ward, by private 
contract. Act of IS50. 

An act done by a guardian for his ward, without authority, 
will not bind the ward, unless beneficial to him. 7 Ai. R. 796, 
Alexander v. Alexander. 

A guardian has no authority to bind his ward, by any con- 
tracts ; and the guardian is personally liable for necessaries 
furnished to his ward, by his direction. 5 Al. R. 42, Sims v. 
Norris <^ Co. 

Every guardian must, within three months after his appoint- 
ment, file in the office of the probate court, an inventory under 
oath, of all the estate of his ward, real or personal, which he 
shall have received, or taken into his possession, to be entered 
of record. CI. Dig. 261, sec. 3. 

Every guardian must exhibit, once in every year, an account 
of the product of the estate, and of the sale and disposition of 
such product, and of the disbursements : which account, must 
be recorded and preserved. CI. Dig. 267, sec. 3. lb. 270, 
sec. 15. Act of 1850, sec. 27. 

If such account is not filed at the end of the year, the judge 
ought to issue a citation at the end of thirty days thereafter, 
requiring the guardian to file it ; and the guardian is personally 
liable for the costs of the citation. Act of 1850, sec. 27. 

Annual accounts are to be considered prima facie, correct ; 
but may be impeached by evidence showing them incorrect. 
9 Al. R. 330, Willis, adm'r. v. Heirs of Willis. lb. 615, Cun- 
ningham and Wife v. Pool. Act of 1850, sec. 28. 



SETTLEMENT OF GUARDIAN. 147 

SETTLEMENT BY GUARDIAN. 

When it shall be necessary for a guardian to make an annual 
or final settlement, he must file in the office of the probate 
court, an account between himself and his ward, with his vouch- 
ers and other written evidence. The judge must then order a 
publication to be made, for at least forty days, either by post- 
ing up written notices at the door of the court-house, and three 
or more other public places in the county, or by advertisement 
for three successive weeks in some newspaper, of the time ap- 
pointed for the settlement of the account. CI. Dig. 229, 
sec. 41. 

But if the estate of the ward or wards does not exceed one 
thousand dollars in value or amount, there must not be a pub- 
lication in a newspaper. Act of 1850, sec. 27. 

A guardian ad litem must be appointed, to contest the ac- 
count on the part of the ward. 

On the day appointed, the settlement may, on sufficient cause, 
be continued. At the proper time, the judge must examine the 
account and vouchers, hear and examine the exceptions, con- 
sider the evidence, state the account, and render a decree 
thereon, CI. Dig. 229, sec. 41, 42. 

■ The decree, if against the guardian, will have the force and 
effect of a judgment at law. But a decree declaring a balance 
in favor of the guardian, is not operative on the ward, and can- 
not be made the ground of an action against him. CI. Dig. 
229, sec. 42. 

When a guardian shall have removed beyond the jurisdiction 
of the court by which he was appointed, (out of the state,) 
without having settled his account, the judge may, on proper 
application, cause notice to be given by advertisement in a news- 
paper published in the state requiring such guardian to file his 
account and vouchers for settlement, at a regular term of the 
court, to be held not less than three months from the date of the 
notice. And if he shall fail to appear and file his account and 
vouchers, in conformity with the notice, it will be the duty of 
the judge, to state an account against him, charging him with 
such amounts as shall appear, on the best information, to have 
been received by him ; and to settle, and decree thereon, as re- 



148 SETTLEMENT OF GUARDIAN. 

quired by law in ordinary settlements. But if, before the final 
hearing, and decree thereon, the guardian shall appear, and file 
his account and vouchers for settlement, and pay such costs as 
may have accrued on the proceeding, in consequence of his de- 
falcation, the court must set aside the proceedings ex parte, and 
audit and state the account of the guardian as required by law. 
CI Dig. 230, sec. 47. '. j ■ 

When a guardian living within the state, having been cited 
to appear and file his account and vouchers for settlement, shall 
fail to obey the citation, the judge must state an account against 
him ; and cause a notice to be given to him, that if he fail to 
appear at the term of the orphans' court next thereafter, and file 
his account and vouchers for settlement, the account so stated, 
ex parte, will be reported for allowance, and settled according 
to law. If the guardian fail to appear, a decree will be made 
thereon, ex parte. But if the guardian appear at any time be- 
fore the final decree, and file his accounts and vouchers, and pay 
the costs accrued, the proceedings ex parte will be set aside; 
and a decree will be made in the usual mode of settlement. 
CI Dig. 230, sec. 48. 1 1 Al R. 563, Hughs v. Ringstaff. 

On settlement of the account of a guardian, ex parte, his sure- 
ties may file an account for him, and represent him ; and they 
will be allowed the compensation to which he might be entitled. 
7 Al. R. 615, Carrol et al. v. Moore, adrrir. 

Annual returns made by a guardian, and recorded by order 
of the court, are considered onXy iwima facie correct ; and will 
not prevent the court, on final settlement, from examining all 
debits and credits, on both sides, from the commencement of 
the guardianship. 9 Al. i?. 615, Cunningham and wife v. Pool. 
Act of 1850, sec. 28. 

The gratuitous declaration of a guardian, that he will not 
charge his ward, is not binding on him, at law. lb. 

When a guardian purchases property, at a sale under exe- 
cution in favor of his ward, and pays by a credit on the exe- 
cution, the ward may elect to have, either the property, or the 
money so credited on the execution, with interest. 9 Al. R. 
919, Cawthorn v. McGraw. 



DOWER. 149 

Proceeding in favor of the ward, against an ex-guardian, 
should be, in the name of the ward, by his present guardian. 
3 Port. 223, McLeod v. Mason. 

An action cannot be maintained on a guardian's bond, while 
the relation of guardian and ward subsists. 8 Al. R. 781, Ei- 
land, Judge V. Chandler. 



PART VI. 



SUMMARY OF THE LAW OF DOWER. 



WHAT IS EMBRACED IN DOWER. 

The widow's dower consists of one-third part of the real 
estate, of which her husband died seised, or which he had con- 
veyed during coverture ; that is, of all the real estate of which 
he was seised during coverture, as her estate during her natu- 
ral life. It will comprehend the dwelling-house generally oc- 
cupied by the husband, next before his death, with the offices, 
outhouses, buildings, and other improvements appurtenant 
thereto. But if it should appear to the court, that the whole 
of the said premises cannot be allotted to the widow, without 
injustice to the heirs, then the widow must be endowed with 
such part only, as the court shall deem reasonable. And she 
has a right to dower, in lands held to the use of, or in trust for 
her husband. CI. Dig. 172, sec. 3. lb. 157, sec. 6. 3 St. 
and Port. 447, Gillespie et al. v. Summe7'ville. 14 Al. R. 286, 
Ing V. Murphy. lb. 370, Edmondson v. Montague. 

But if there are no children of an intestate, nor descendants 
of them, the widow will be entitled to one-half of the real 
estate, of which her husband died seised. CI. Dig. 168, sec. 2. 

Of the personal estate, the widow is entitled to a share, in 

14* 



150 DOWER. RELlNaUISHMENT. 

absolute right, according to the following scale. If there be 
no child, or but one child, she must have one-half, the debts of 
the deceased being first paid. If there be more than one child, 
but not more than four, she must have a child's part. If there 
be more than four children, she must have one-fifth part. But 
this is not strictly dower ; nor is it a right by descent. CI. 
Dig. 173, sec. 4. 

A sale of the husband's interest in land, in his life-time, by 
Ji.fa., does not divest the widow's right of dower. 11 Al. R. 
552, Nance v. Hooper. 

DOWER WAIVED OR BARRED BY LEGACY. 

When a testator has made provision in his will, for his widow, 
she will not be entitled both to the legacy and to her dower ; 
but if she accept her legacy, she will be considered as waiving 
her right to dower — unless it appear plainly by the will, that 
the testator intended her to have the legacy, in addition to 
dower. If dissatisfied with the provision made for her in the 
will, she may signify her dissent thereto, in the circuit or pro- 
bate court of the county in which she resides, at any time 
within one year after probate. She will then be entitled to her 
dower. If she do not express her dissent, in the manner, and 
within the time limited, she will be considered as having made 
her election to take under the will, and to relinquish her dower. 
CI. Dig. 172, sec. 1, 3. Ih. 300, sec. 20. 10 Al. R. 977, Mill- 
iard and wife v. Binford's heirs and adrar. 

RELINaUISHMENT OF DOWER. ' 

A feme covert, either over or under twenty-one years of 
age, may relinquish her dower. To make relinquishment of 
dower valid, there must be an acknowledgment to that efiect, 
by her, on a private examination, apart from her husband, 
before a judge of the circuit or probate court, a justice of the 
peace, a clerk of the circuit or county court, or a notary pub- 
lic, stating that she signed, sealed and delivered the deed of 
relinquishment, as her voluntary act, freely, without any fear, 
threats or compulsion of her husband ; and there must be a 



ASSIGNMENT OF DOWER. 151 

certificate thereof, written on or under said deed, and signed 
by the officer before whom the acknowledgment was made. 
CI. Dig. 174, sec. 9. lb. 155, sec. 27. lb. 157, sec. 39, 40. 

When a deed from the husband, without reHnquishment of 
dower, has been recorded, the wife may subsequently relin- 
quish her dower, by acknowledgment, as heretofore stated ; and 
such acknowledgment must be recorded where the conveyance 
of the husband has been recorded. lb. 155, sec. 28. 

When a feme covert shall join with her husband, in the exe- 
cution of a deed of conveyance of land, in the presence of 
two or more credible witnesses, or shall acknowledge such 
deed, before any person authorized by law to take acknowledg- 
ment of deeds ; her right of dower in the lands conveyed, will 
be thereby perpetually barred. CI. Dig. 174, sec. 10. 

A non-resident feme covert may relinquish her dower, by 
deed of release, acknowledged before a notary public, or a 
judge of any court of record, in the state, kingdom or territory, 
in which she may reside. CI. Dig. 174, sec. 11. 

ASSIGNMENT OF DOWER. 

Until assignment of dower to the widow, she has a right to 
retain full possession of the dwelling-house, in which her hus- 
band usually dwelt, next before his death, together with the 
out-houses, offices, or improvements, and plantations thereunto 
belonging, free from molestation or rent. CI. Dig. 173, sec. 7. 

The heir may assign dower to the widow ; and her assent 
will bind her. But without her assent, she will not be bound 
by the act of the heir. 4 Al. R. 168, Jolinson, admJr. v. Neil 
and wife. 

Dower may be allotted by the circuit, or the probate court. 
Act of 1850, sec. 14. 

Assignment of dower can be made under the statute, by the 
circuit or probate court, only when the dower can be laid off 
by metes and bounds. In other cases, it is necessary to resort 
to a court of chancery, to adjust her claim. 9 Al. R. 901, 
Barney v. Frowner and wife. 

When there has been an alienation by the husband, in the 
assignment of dower, the widow is not entitled to any benefit 



152 ASSIGNMENT OF DOWER. 

from improvements made by the purchaser. She is entitled 
to one-third, according to the condition of the land, at the 
time of the alienation by the husband. Ih. 

To obtain her dower, the widow must present a petition to 
the circuit or probate court of the county in which her hus- 
band may have usually dwelt, next before his death, setting 
forth the nature of her claim, and specifying the lands, in 
which she claims dower ; and praying that dower may be 
allotted to her. When she has claims to dower in lands lying 
in different countries, she may proceed, for each several parcel, 
in the court of the county, in which such land may lie. She 
must state in her petition, who are the heirs, and who are the 
tenants of the freehold. CI. Dig. 173, sec. 5. 7 Port. 19, 
exrs. of Greene v. Greene. '_ . ' 

The proceedings on the petition for dower, must be in a 
summary way. The applicant must give ten days' notice, to 
the executor or administrator, by serving him with a copy of 
the petition. When there is no executor or administrator ; or 
when the executor or administrator does not reside in the same 
county with the widow ; the petitioner must give notice, by 
publication for four times in succession, in a newspaper pub- 
lished in the state, and the nearest to the residence of the 
widow. The tenants of the free-hold also, must have notice 
of the petition. CI. Dig. 173, sec. 6. 9 AL R. 901, Barney 
V. Frowner and wife. "■ / . . - 

When the land has been conveyed by a non-resident grantee, 
his widow must assert her right to dower, before the proper 
tribunal, within twelve months after the death of her husband; 
or her right will be barred. CL Dig. 174, sec. 12. 

On the petition being presented to the court, it must issue a 
writ to the sheriff, commanding him to summon five discreet 
disinterested free-holders, not connected with either party, by 
consanguinity or affinity ; who must, under oath administered 
by the sheriff, for the faithful and impartial discharge of the 
duty assigned to them, allot and set off, to the widow by metes 
and bounds, one-third part, according to quantity and quality, 
of the lands, tenements, and hereditaments, subject to dower 
in that county. And they must put her in possession thereof; 
and this proceeding will vest in her, a title for her natural life. 



ASSIGNMENT OF DOWER. 153 

When she has a claim to dower in lands lying in different coun- 
tries, she may proceed in the circuit or probate court of the 
county where such land may lie, and recover dower in the 
same manner. And the sheriff and commissioners must, at 
the same time, allot and set off to the widow, that portion of 
the personal estate, to which she is entitled by law, and which 
shall be hers in absolute right. CI. Dig. 173, sec. 5. 

Dower cannot be claimed in the same petition, of several 
alienees from the husband, of different parcels of the land. 9 
Al. R. 901, Barney v. Frowner and ivife. 

The widow may convert woodland into arable, in a reason- 
able proportion, in the lands held by her in dower. 7 Al. R. 
514, Alexander et al. v. Fisher. 

Against a purchaser from the husband, the widow is entitled 
at law, to damages, (mesne profits,) only from the commence- 
ment of her dower-suit ; but against the heir, she is entitled to 
damages, from the death of her husband. In equity, damages 
for the detention of the land assigned to her in dower, rest on 
the ground of title ; and the wddow is entitled to interest on 
the arrears 1 1 Al. R. 20, Beevers and Jennison v. Smith. 

It has been decided, that damages for detention of dower, 
can be obtained by the widow, only in chancery. 13 Al. R. 
329, Smithes heirs v. SmitKs adrn'r. 

A court of chancery cannot decree to a widow, a certain 
sum in lieu of dower, to be raised by sale of the real estate, to 
which dower is attached. The decree should be, for the annual 
payment of the sum ascertained to be the annual value of the 
dower. 15 Al. R. 439, Potier and McCoy v. Barclay and 
husband. 



INDEX. 



-. . ' Page. 

Abatement of legacies, .... 29, .30 

" suits, .... 66, 67, 100 

" " not produced by revocation, . 65, 100 

Account of executor or administrator called for by creditor, 120 

Action at law, by executor or administrator, . . 101 

" " « " all must join, 101 

" " " , " when one may sue alone, 101 

" " " ' " on what demands, 102 

" " " " pleading and evidence, 103 

" " between executors and administrators, 104 

" " by administrator de lonis non, . 104, 105 

" " against ex's and admr's, . . 105, 106 

" " " " " survive on death of one, 106 

" " " " " one non-resident 106 

" *' " " " on what liabilities, 106 

*' " " " " by creditor appointed 

-' ' \ ex'r and not acting, 107 

** " " " " not within six months, 105 

" " " " " where to be brought 106 

" " " <' ^ " who to be joined, 106 

** " " " " pleading and evidence, 

[105, 106, 107, 108, 109, 110, 137 

" " for legacy, . . . . 106 

" " on bond of executor or administrator, . Ill 

*' " " of guardian, . . . 145 

Ademption of legacies, .... 28, 29 

Administration, jurisdiction of the orphans' court, . 51 

" not to be granted for fourteen days, . . 51 

" to whom to be granted, ... 51 



156 INDEX. 

Page. 

Administration, when it commences, . . .59 

" application for, and proceedings, . 51,52 

« in sheriff, . . . . .53 

" in coroner, .... 53 

" in general administrator, . . .53 

" ceterorum, . ... 54 

Administrator general, . . . . .53 

" ad. col. , . . . 63, 54 

" limited, . . . . .54 

" durante minore cetate, . . . 54, 55 

; « pendente lite, » . . . 55,56 

'^ . « de bonis non, . . 56, 57, 133, 134 

" creditor appointed, . . . .59 

** cum test, annexo, . . 31, 57, 58 

""" " " " on limited appointment of ex'r, 31 

" time when the estate vests in, . . 60, 61 

■ .. « power of, generally, . . 71,72,73,129 

". , " of one of several, . . 73 

" right to retain for his own debt, . 73, 113 

" regarded in chancery as a trustee, . 116 

Administratrix feme covert, . . . .59 

Advancement, . . . • . 85, 86 

Age at which will may be made, . . .1,4 

" " executor may act, . . . 54, 55 

Annual returns and settlements, . . 126, 129, 147, 148 

Appointment of administrator, not impeachable collaterally, 59 

Appraisement, . . • . . .77 

Apprentices, ...... 69 

Assent to legacy, . . . .42, 43, 44, 45, 106 

presumed, .... 43, 44 

conditional, .... 43 

of administrator durante minore cBtate, . 43 

of feme covert administratrix, . . 43 

Assets, . . • . . . .88 

" admission of, when may be retracted, . . 118 

Attachment-lien, when lost, .... 124 

B. 

Bills of exchange, . . . . .112 

Bond of executors and administrators, . . .63 



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INDEX. 157 

Page. 

Bond of executors and administrators, foreign, . . 63 

" " on sale of real estate, 80 

to refund legacy, ..... 49 

" by distributee, .... 121 

to indemnify against a contingent debt, . . 41 

of guardian, ...... 145 

of judge of orphans' court, . . . 140 
Brothers and sisters in distribution, . . . .86 

. .. , c, , . . 

Cancellation of wills, . . . . . 5, 6 

Caveat, ....... 66 

Chancery, remedies survive to executors and administrators, 116 

" suit in, may be revived by sci.fa., . .117 

** bill may be filed by ex'r, before grant of letters, 116 

" " " by those alone, who have letters, 116 

" remedies in, survive against executors and adm'rs, 116 

" suit in, for legacy, . . . . 116 

" " '' by single legatee, . .117 

" " by married woman, for settlement in legacy, 46 

" ' " for distributive share, . , .117 

" " before judgment at law, . " . 117 

" when it will decree a sale of land, . . 117 

" *' _ " '' " of personal estate, 117 

" in a bill against ex'rs, all who have acted to be joined, 118 

" " '' executrix, her husband to be joined, 118 

" of ne ea^eai against executors or administrators, 118 

" may act on adm'r bringing property from abroad, 118 

" may appoint a receiver, . . . 118 

" payment of money into court, . . .118 

" transfer to, when judge of orphans' court is interested, 129 

" pleadings in, . . . . .117 

" costs in, . . . . .118 

" probate in, .... . 36 

Children, in a will, . . . . . 8, 9, 10 

" and their representatives, in distribution, . 84 

Clerk of the orphans' court, .... 141 

Collaterals, . . . . . . .87 

Collecting the effects, . . . . . 75 

Compensation to executors and administrators, . . 1 34 

15 



158 



INDEX. 



Page, 

Conditional legacy, ... 20, 21, 22, 23, 24 

Condition in legacy, in terror em, . . . .23 

" " repugnant, impossible, &;c. . . 23, 20 

"" " against law or morals, . . 20, 21 

" " " in restraint of marriage, . 22, 23, 24 

Construction of wills, . . . . 7, 8 

Contingent interests, pass to the executor or administrator, 71 

Contract by executor or administrator, . . 97, 98 

Coroner, administrator, ..... 53 

Costs, . . • . , ...... ■ 105, 118,137 

Cousins in wills, . * . . . 10 

Crop of cotton, grain, &c. passes to the administrator, . 62 

" right of widow in, . . . . . 62 

Cumulative legacies, .... 24, 25 



D. 



Debts, in legacy, 

" to be paid in preference to legacies, 

" contingent, 

" to be paid, 

" for last sickness and funeral. 



difference in liability of personal and real estate, 



14 
42, 43, 44 
41 
75,76 
76 
76 



Decrees of orphans' court, their force, 

" " " requisites. 

Descendants, in wills. 
Descent, order of, . 
Detinue, .... 

Devastavit, .... 

Distribution, .... 

" commissioners for, 

" ought not to include uncollected notes. 

Distributive share may be assigned, 

" " may be sued for in chancery, 

Domicil, ...... 

Dower, what it includes, . . 

" waived by taking legacy, 

" " if there be no dissent to the legacy, 

" before assignment of, widow's right to the mansion, 

" may be assigned by the heir, 



129, 132, 147 

131, 132 

10 

84, 86, 87 

112 

91, 92, 93, 94, 111 

81, 121, 122 

121, 122 

122 

123 

116 

87 

149 

150 

150 

151 

151 



INDEX. 



159 



Page. 

Dower may be allotted by the circuit or probate court, 151 

" not defeated hjji.fa. against the husband, . . 150 

" by whom and how relinquished, . . 150 

" relinquished by non-resident feme covert, . . 151 
*' allotted by circuit or probate court, only by metes and 

bounds, ..... 151 

" when land has been alienated by husband, . . 151 

*' proceedings to obtain, .... 152 

• " notice of petition for, .... 152 

*' when land has been conveyed by a non-resident, 152 
" writ of, . . . . . ,152 



E. 



Election to take legacy, 

" " " by the widow, 

" of administrator de bonis non on insolvent estate. 
Entry of administrator to cultivate the crop, 
Errors and appeals, .... 

" " power of revising court, limited, 

" writ of, for personal representative, 
.. " in settlement of insolvent estates. 
Estate of executor or administrator, when it vests, 
" of administrator in the realty, 
" " in the personalty, 

'' '* in chattels real, affecting husband and 

wife. 
Execution from the court of probate, . 
Executor, appointment of, 
'' debtor, 

" creditor, 
" foreign, 

'' de son tort, 
" acts of, before probate, 

" estate of, . . . 

power of, . 

" of one of several, 
" of feme covert, 
right to retain for his own debt, 
estate of, when there are several, 



48 
49 

134 
62 

142 

120 
69 

137 
59 
60 
61 



61 

129, 138 

. 30, 31 

. 27 

27 

. 32 

. 33, 34 

. 34 

40 

40, 71,72,73,127 

73 

. 41 

. 73,110 

. 40 



160 



INDEX. 



F. 



Family, in wills, 

Fruit trees, &;c. when appurtenant to the soil, 
Funeral expenses to be reasonable, 
" . and last illness, expenses of, 

G. 



H. 

Hand-writing of wills, .... 

" " proof of, .... 

Heirs in wills, ..... 

Heir-loom, ..... 

Hotchpot, ...... 

Husband, his right in distribution of wife's estate, 

" right of, in chattels real of wife, 

" " in chose in action, 

" to be joined in action against married woman, 

I. 

Impossible condition in legacy. 

Increase or diminution of specific legacies, 

Insolvency of estate to be tried by a jury. 

Interest on legacies, 

" on money used by executor or administrator 
'' liability for, may be tried by a jury, 
" compound, on gross breach of trust, 
" of the judge of probate. 

Inventory, .... 

Issue in wills, . ... 



Page. 
11 

61 
76 

99 



Garnishment against executor or adm'r, not within six months, 105 

Grand-children, in wills, . . . . 10 

Guardian, power of chancery to appoint, . . . 144 

" " probate court to appoint, . . 144 

" testamentary, ..... 145 

" sheriff may be appointed, . . . 145 

minor over fourteen years may choose, . . 144 

power of, . . . . . 146 

must render annual accounts, . . . 146 

settlement by, .... 147 

Guardianship may be revoked, .... 145 



. 2, 3 
37 

. 10 
62 

. 85 
81 
61 

69,70 

. 106 



20, 21 



. 


. 120 


. 


46,47 


tor. 


47, 127 


. 


119 


. 


. 127 


. 


129 


74, 120, 


121, 146 


^ 


10 



INDEX. 161 

J. 

Page. 

ury, impanneled, to try matters in probate court, . 119 

to try validity of will, . . . 7,36,119,126 

to try whether the ex'r. or adm'r. is liable for interest, 119 
to try issue, as to insolvency of an estate, . . 120 

to try validity of claim against insolvent estate, . 120 

to try validity of a will, lost or destroyed, . . 7 

may be impanneled to carry attachment into effect, 120 

trial by, limited, . . . , -119 

verdict of, when it may be set aside, . , 120 

K. 

Kindred, how computed, .... 86 

L. 

Language of a v/ill, . . . . . • ■ 3 

" foreign, in a will, . . , ,39 

Legacy, general or specific, .... 13 

" in nature of specific legacy, demonstrative, . 13 

" of money, . . . . .14 

" of stock, ...... 14 

" of debts, • • . . . 14 

" connected with the realty, . . .14 

" description of property in, ... 15 

vested, ..... 16, 17, 18 

" lapsed, . . . . .16, 17, 18 

" as to survivorship, . . . .17 

" with remainder over, .... 17 

" on condition, . . . .20, 21, 22, 23 

" to executors, ..... 23 

" cumulative, . . . . 24, 25 

" to creditor, . . . . . 26 

" to debtor, . . . . .25 

" ademption of, .... 27, 28 

" abatement of, . . . . 29, 30 

assent to, .... . 40, 43, 44 

" time of payment, . . , . .45 

" to whom to be paid, .... 46 

" time of payment or delivery, . . .45 

15* 



162 



INDEX. 



Page. 

46, 47 

48 

49, 50 

46 

117 

8, 9, 17 

50 

38' 

95,96 

" on their own acts, 97, 98, 99, 109, 110 
" for expenses of last illness and 



Legacy, interest on, 

" specific, increase or diminution of, 

" refunding of, 

" to a married woman, 

" may be sued for in chancery, 

Legatee, description of, ... 

" residuary, .... 

" subscribing witness, . . . 

Liability of ex'rs. and adm'rs. on acts of the deceased, 



funeral 



Limitations, general statute, 
" non-claim, 



99 

112, 113 

113, 114, 115 



M. 

Marriage, condition in legacy, in restraint of, . . . 22, 23 

Married woman, will of, . . . . .2 

" " legacy to, ... . 46 

" " executrix, . . . .41 

" " administratrix, ... 59 

" " right in realty, . . . .61 

" " right in chose in action, . . 69, 70 

" " right in distribution, . . 82, 83 

" " devastavit by, .... 94 

" " to be joined in action against husband, . 106 

<« " " bill against husband, . 118 

Marshalling assets, . . • . . 90, 91 

Mistake in name, or description of legatee, • . 12 

Money in legacy, . . .... 14 



N. 



Nephews, and nieces, in wills, 

New trial, .... 

Next of kin, 

Non-claim, .... 

Notes, promissory, 

Notice to creditors to present their claims, 



> . 10 

143 

11,86 

113, 114,115, 135 

. 72, 112, 127 

75 



INDEX. 163 

O. 

Page. 

Oath of ex'rs. and adm'rs. when appointed, . . .64 

P. 

Paraphernalia, . . . , 

Parol evidence, to explain a will. 

Payment of legacies. 

Pencil, used in writing or altering a will. 

Probate, acts before, .... 

" where made, 

" court, ..... 

"in common form, not in use, 

" of will of personal property, 

" " of real estate, 

" of nuncupative will, 

" of copies of wills proved abroad, 

" proceedings in, 

" proof required, 

'' effect of, .... 

" not to be impeached collaterally, 

" revocation of, . 
Prohibition to court of probate. 
Publication, to creditors, to present claims, 

*' on settlement of solvent estates, . 

". ' on " of estates by guardians, 

^' of return of insolvency, 

" for settlement, by ex'r. or adm'r. of insolvent estates, 133 

" of application for dower, . . .152 

/* of sale of real estate, ... 78 

" to non-resident ex'r., adm'r. or guardian, 124, 147 

R. . 

Refunding, of legacies and distributive shares, 49, 50 

Register of the orphans' court, .... 141 

Relations, in wills, . . . . . .10 

Remainder in legacies, ..... 17 

Rent of real estate, by the adm'r., . . . .60 

Republication of wills, .... 7 

Residuary legatee, . . . , ,50 



. 


62 


12, 25, 


26, 28, 38 


. 


45, 46 


. 


3 


• 


34 


. 


34 


139, 


, 140, 141 


. 


35 


. 


37 


. 


37 


. 


35 


. 


36 


• 


35, 39 


• 


37 


. 


39, 66 


. 


36,39 


. 


40,66 


. 


67 


. 


75 


. 


124, 125 


. 


147 


. 


132 



164 INDEX. 



Residue, ...... 51 

Resignation of executor or administrator, . . 99,109,139 

Retainer for debt of executor or administrator, 73, 110, 137 

Revocation, of wills, . • . . .56 

of probate, . . . .40, 65,71 

" of guardianship, .... 145 

'■ ..■ ' S.' 

Sales, general regulations, .... 76, 81 

Sale of real estate, by order of orphans' court, 78, 79, 80, 81 

" '' " when to be decreed in chancery, . 118 

<' " " and bond for title, . . . 138,139 

" personal property, by order of probate court, . 77, 78 

" irregularity in, . . . . . 81 

" reversal of decree of, . • . .81 

Scire fieri enquiry, . . . . • 111 

Sci.fa. in chancery, for execution, to revive suit, 67, 68, 116, 117 
Security, liable only for the amount of assets, . . 107 

Set-off, ...... 107, 108 

Settlement of solvent estate, annual, . . . 120 

, " " " ouo;ht to be made after 18 months, 121 

" ex'r. or adm'r. to report the estate, 122 
" solvent, after eighteen months, 122 

'' made at any term of court, 122 

'' proceedings in, 123,124,125,126,127, 

[128, 129, 130 
■. « " on default, . 124 

" parties proper, . . . 125 

" allowance, commissions, &c., 127, 128 
" when the judge is interested, 129 

'' documents, evidence, and vouchers, 130 
Settlement of insolvent estates, the whole estate, how liable for 

debts, . . 131 

" " debts for last sickness and funeral, preferred, 131 

" " return of insolvency, and schedules, 131, 132 

'* " day for trying allegation of insolvenc}^, 132 

" . " decision of allegation of insolvency, 132 

" " day for settlement by adm'r. or ex'r., 133 

" " election or appointment of adm'r. de Ion. non, 133 



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11 


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11 


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INDEX. 



165 



• - fPage: 

Settlement of insolvent estates, rights of adm'r. de honis non, 134 

" '^ claims to be filed, . . .135 

" " " filed, to be verified by oath, 135 

" " to be receipted for by clerk, . 135 

'^ " decided, ... 136 

" day for settlement, . . .136 

" decree, • . . . 136 

" judgment at law, filed as claim, . . 137 

" of accounts of ex's, and adm's., principles of, 133 

by guardian, .... 147, 148 

" non-resident, or defaulting, 147, 148 

Sheriff, administrator, . . . . .53 

Signature to will, . . . . . 2, 5 

Solvency of estate to be reported after eighteen months, 122 

Stock in legacy, .... 14, 17, 27 

Survive, actions which, .... 67, 68 

Survivorship of executors or administrators, . . 32, 73 

" in legacy, .... 16, 17, 22 

T. 

Taxes, . . . . . . ' 76, 99 

Time, when material in a legacy, . . . 20, 21 

Trees, fruit, &c. when appurtenant to the soil, . . 61 

Trespass, action of, surviving, . . . , 67 -' 

" " " not to be commenced after the death, 68 

Trover survives, . . . * .68 



Wills, persons capable of making, 

" of married women, .... 
" for what causes void, .... 
" extend to personal (not real) property subsequently 
acquired, 
of personal property, written or oral, (nuncupative,) 

" " do not require a subscribing witness, 

" " what proof necessary. 



form of, 
language of, 



imperfect or unfinished. 



1 

2,7 
1 

2 
2 
-2 
2 
3, 4 
3 
3 



166 INDEX. 

Page. 

Wills, revocable, ...... 5 

" lost or destroyed, , . , . 7,119 

" nuncupative, . . . . .4 

" in foreign language, .... 39 

" of real estate, requisites for, ... 4 

" " " do not operate on land subsequently, acquired, 4 

" validity of, submitted to ajury, . . 7, 36, 119 

" may be established in part, and rejected in part, 3, 36 

" construction of, . . . . . 7, 8 

" when withheld, their production may be coerced, ^ ' 36 
" to remain in the clerk's office, . . .36, 40 

Witness, subscribing, not necessary to will of personal estate, 2 

Witnesses, two necessary to establish any material fact, 2, 37 

" subscribing, three required for will of real estate, 4 

Witness, child of legatee, incompetent, . . . .^ 38 

" a legatee, ..... 38 

" a creditor, . .... 38 



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